IN THE CASE OF:	  

		BOARD DATE:	  30 August 2011

		DOCKET NUMBER:  AR20100027193 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of his records to show he was discharged from the Army National Guard (ARNG) for medical reasons.

2.  The applicant states he had been consistently seen by medical facilities regarding anxiety, depression, and post-traumatic stress disorder (PTSD).  

3.  The applicant provides:

* Three psychiatric evaluations
* Behavior health evaluation
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2.  The applicant enlisted in the Illinois Army National Guard (ILARNG) on 21 February 1997 and held military occupational specialties 91W (Health Care Specialist) and 35N (Wire Systems Equipment Repairer).  He attained the rank/grade of sergeant/E-5. 

3.  He was ordered to active duty in support of Operation Iraqi Freedom on 5 January 2005 and subsequently served in Kuwait/Iraq from 15 May 2005 to 27 April 2006.  

4.  He was honorably released from active duty on 6 June 2006 by reason of having completed his required active service.  He was transferred back to the ILARNG.  

5.  Subsequent to his release from active duty, between 2008 and 2009, he accumulated 20 unexcused absences and he was declared an unsatisfactory participant:

	a.  His service records contain multiple letters of instructions for unexcused absences, dated on various dates, together with notifications  from his immediate commander notifying him that he was absent from the scheduled Unit Training Assemblies/Multiple Training Assemblies (UTA/MUTA).  

	b.  In each letter, he was also advised that he had accrued a certain number of unexcused absences and that an accumulation of nine unexcused absences within 1 year would declare him an unsatisfactory participant.  In each case, he was also provided an opportunity to explain and/or provide justification for the unexcused periods.  

6.  On 12 March 2009, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of Army Regulation (AR) 135-178 (Enlisted Administrative Separations) by reason of unsatisfactory participation.  He was encouraged to offer any mitigating evidence for his continuation as a member of the ILARNG.

7.  The applicant acknowledged receipt of the notification of proposed separation for unsatisfactory participation but did not submit a statement on his own behalf or present any medical issues. 

8.  On 28 May 2009, after having accrued 20 unexcused absences, the applicant's unit commander initiated a recommendation for his discharge in accordance with chapter 8 of National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management) and chapter 9 of AR 135-178.  The immediate 
commander indicated that the applicant had had absent without leave (AWOL) problems since October 2008 and had shown no improvement to change his behavior.  He was counseled numerous times and he was told what would happen if his AWOL continued but he still did not improve.  He even made comments that he had no plans to improve.  The immediate commander recommended an under other than honorable conditions discharge.

9.  On 26 June 2009, the applicant's intermediate commander recommended approval of the applicant's discharge.

10.  Subsequent to the chain of command's recommendations, the separation authority approved the applicant's discharge and directed his service be characterized as under honorable conditions (general).  Accordingly, the applicant was discharged from the ARNG on 30 June 2009.  

11.  His National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows he was discharged from the ARNG on 30 June 2009 in accordance with paragraph 8-35j of NGR 600-200 as an unsatisfactory participant with an under honorable conditions (general) character of service and Transfer to the U.S. Army Reserve (USAR) Control Group (Reinforcement).  He completed 11 years of total service for pay.

12.  He submitted:

	a.  A psychiatric report, dated 19 July 2008, that shows a diagnosis of post-traumatic stress disorder, major depression, and adjustment disorder with depressed mood. 

	b  Two psychiatric reports, dated 31 July 2008 and 18 September 2008, regarding prescribed medication.

	c.  A medical statement, dated 19 October 2010, from a behavioral health hospital, wherein the doctor states the applicant was admitted to a medical center because of his anxiety and obsessive/compulsive disorder.  

13.  An advisory opinion was obtained from the NGB in the processing of this case.  An NGB official recommended disapproval.  He states in consultation with the NGB Surgeon's office, the applicant did not present sufficient evidence to support that his medical concerns were incurred while he was a member of the ARNG.  A memorandum from the ILARNG, dated 17 March 2011, stated in part that he did not provide documentation to his chain of command indicating a medical issue prior to his separation.  The medical documentation provided with this case was not presented during the time he served in the ILARNG.  The applicant must provide evidence that his injury or illness symptoms occurred in the line of duty.

14.  The applicant was provided with a copy of this advisory opinion but he did not respond. 

15.  AR 135-178 sets policies, standards, and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of ARNG and USAR enlisted Soldiers for a variety of reasons.  Chapter 9 of the regulation governs separation for unsatisfactory performance.  A Soldier may be discharged when it is determined the Soldier is unqualified for further military service by reason of unsatisfactory performance.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.  An honorable characterization of service is not authorized for a member who is no longer in an entry level status unless the member's record is otherwise so meritorious that any other characterization would clearly be inappropriate.

16.  AR 135-178 states the honorable characterization of service is appropriate when the quality of the Soldier’s service generally meets the standards of acceptable conduct and performance of duty for military personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  A general discharge is warranted when a significant negative aspect of the Soldier's conduct or performance outweighs positive aspects of the Soldier's military record. 

17.  AR 135-178, chapter 15 pertains to separation for other reasons.  It provides guidance for the separation of Soldiers who are medically unfit for retention.  Paragraph 15-1(k) (Medically unfit for retention) states discharge will be accomplished when it has been determined that a Soldier is no longer qualified for retention by reason of medical unfitness (AR 40–501, AR 40–3) unless the Soldier requests and is granted a waiver under AR 40–501, as applicable; determined fit for duty under a non-duty related PEB (physical evaluation board) fitness determination (AR 635–40); or is eligible for transfer to the Retired Reserve.  Soldiers who do not meet the medical fitness standards for retention due to a condition incurred while on active duty, any type of active duty training, or inactive duty training will be processed as specified in AR 635–40 if otherwise qualified.

18.  AR 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures) governs service obligations of members of the Reserve Components.  This regulation states that a member is an unsatisfactory participant when he or she accrues nine or more unexcused absences from scheduled drills during a 1 year period.

19.  AR 40-501 (Standards of Medical Fitness), chapter 3, provides standards for medical retention.  Basically, members with conditions as severe as listed in this chapter are considered medically unfit for retention on active duty.

20.  NGR 600-200 prescribes the criteria, policies, processes, procedures and responsibilities to classify, assign, utilize, and transfer within and between states, enlisted Soldiers of the ARNG.  Chapter 8 of the regulation, listed reasons, applicability, codes, and board requirements for administrative separation or discharge from the Reserve of the Army, the State ARNG only, or both.

	a.  Paragraph 8-35c(5) states Soldiers may be discharged for being medically unfit for retention per AR 40-501.  Commanders, who suspect that a Soldier may not be medically qualified for retention, will direct the Soldier to report for a complete medical examination per Army Regulation 40-501. 

	b.  Paragraph 8-35j provides for discharge of ARNG Soldiers who are unsatisfactory participants.  An unsatisfactory participant is a member of the Selected Reserve who fails to participate as outlined in AR 135-91. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant was required to attend all scheduled UTAs and annual training periods.  It appears he chose not to do so.  According to the available evidence, the applicant was aware that if he accumulated nine unexcused absences within 1 year he could be declared an unsatisfactory participant.

2.  He was absent from scheduled UTAs or MUTAs on multiple occasions (20 unexcused absences).  In each instance, he was notified in writing.  Accordingly, subsequent to his history of unexcused absence his immediate commander requested that he be released from the ARNG for unsatisfactory participation.  The applicant acknowledged receipt of the notification of proposed separation action.  

3.  His failure to present any medical issues at that time despite being encouraged by his commander to offer any mitigating evidence for his continuation in the ARNG indicates he did not have any medical issues. 

4.  The separation authority approved the request and the applicant was released and transferred to the USAR Control Group (Reinforcement) in accordance with regulatory guidance.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

5.  There is no evidence of record and the applicant did not provide convincing evidence which shows he encountered medical problems during his ARNG service or that he raised this issue with his chain of command or with any available source that may have been able to assist him in resolving this issue.

6.  In view of the foregoing evidence, he is not entitled to the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ___X_____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   _X______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20100027193



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ABCMR Record of Proceedings (cont)                                         AR20100027193



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