IN THE CASE OF:	  

		BOARD DATE:	    14 July 2011

		DOCKET NUMBER:  AR20100028155 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) to show in: 

* Item 27 (Reentry (RE) Code) a change from RE-3 to a more favorable code
* Item 29 (Narrative Reason for Separation) a change from "Misconduct - Serious Offense" to "Medical"

2.  The applicant states he acquired ITP (idiopathic thrombocytopenic purpora) during basic training (BT).  He had a staph infection on the right knee as well as cellulites.  His right knee had swollen up and he received medication called Septra at Fort Benning, GA.  This medication had sulfur in it.  He did not know he was allergic to sulfur.  During the time he was given this medication, he was admitted to Martin Army Medical Hospital.  He acquired petechae all over his body while being on this medication and he started to bleed out of his body.  He was rushed to the intensive care unit where he remained for 5 days.  His platelet count was -5,000 the first day, it went up to 3,000 the second day, and up to 23,000 on the third day.  He was given steroids, blood transfusion, and platelet transfusion.  He was treated and returned to his unit where he completed BT.

3.  He also states after graduation from advanced individual training (AIT), he was reassigned to Fort Drum, NY, where his ITP returned.  He was put on a profile.  However, while he was on the profile, he was harassed and beaten up 

because he could not perform his duties as a Soldier.  He was then admitted to Samaritan Medical Center in Watertown, NY.  They placed him in a mental health unit where he acquired depression.  They put him on multiple psychiatric medications.  After his release from this unit, he was kept on medication.  This caused him to become confused and disoriented.  He was then charged with being absent without leave (AWOL) and using drugs which led to his court-martial.  He was confined and ultimately discharged from the Army in January 2009.

4.  The applicant provides a statement from a medical doctor, dated 19 May 2010.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) on 21 August 2007 for a period of 4 years and 17 weeks.  He completed BCT and AIT at Fort Benning and he was awarded military occupational specialty 11B (Infantryman).  He was assigned to the 4th Battalion, 31st Infantry.

2.  During May 2008, he was investigated by the Fort Drum Military Police for various infractions.

3.  During June 2008, he was counseled by members of his chain of command for various infractions, including:

* inappropriate conduct toward female Soldiers
* failing to follow orders
* unauthorized wear of rank and insignia
* theft of Government property
* lying to a commissioned officer
* being AWOL
* false theft of his own X-Box
* false claim of vandalism to his own vehicle
* testing positive for a drug

4.  In June 2008, he underwent a command-directed mental status evaluation.  The clinical psychologist did not find evidence of a mental defect, emotional illness, or psychiatric disorder of such severity as to warrant disposition through medical channels.  The applicant was diagnosed with the below diagnoses and cleared for any administrative actions deemed appropriate by his commander:
* 
Axis I: Adjustment Disorder with mixed disturbance of conduct/emotion (chronic)
* Axis II: Antisocial features
* Axis III: Recurrent platelet destruction (ITP)
* Axis IV: Occupational problems 

5.  On 3 October 2008, he was convicted by a summary court-martial of:

* two specifications of being AWOL from 10-12 April and 2-3 May 2008
* one specification of disobeying a lawful command
* two specifications of making false official statements
* one specification of wrongfully using peyote between 5 May and 8 June 2008
* two specifications of stalking between 22 May and 2 June 2008, and between 1 and 3 June 2008
* one specification of stealing Government property on 3 June 2008
* one specification of wrongfully wearing the insignia or grade of specialist on 1 May 2008
* one specifications of wrongfully wearing the insignia or grade of private first class on 21 May 2008
* one specification of wrongfully wearing a combat patch between 1 May and 21 May 2008

He was sentenced to a forfeiture of $898.00 pay and confinement for 30 days.  The convening authority approved his sentence on 7 November 2008.

6.  On 8 October 2008, the applicant underwent a separation medical examination.  The examining physician noted his nicotine dependency; headache; back, knee, wrist, and shoulder pain; and depression and anxiety, but did not find any of these conditions disabling or prevented the applicant from performing his duties.  He was fully qualified for retention. 

7.  On 4 December 2008, the applicant's immediate commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), paragraph 14-12c, by reason of misconduct - commission of a serious offense (AWOL, disobeying a lawful command, making false statements, wrongfully using peyote, stalking female Soldiers, stealing government property, and wrongfully wearing unauthorized rank).  He recommended an under other than honorable conditions discharge.

8.  On 4 December 2008, the applicant acknowledged receipt of the commander's intent to separate him.  He subsequently consulted with legal counsel and he was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He further elected not to submit a statement in his own behalf.

9.  He further indicated he understood he could expect to encounter substantial prejudice in civilian life if a general, under honorable conditions discharge was issued to him and that he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge.

10.  Subsequent to the applicant's acknowledgement and consult with counsel, his immediate commander initiated separation action against him in accordance with Army Regulation 635-200, chapter 14-12c, for misconduct - commission of a serious offense.

11.  On 8 and 9 January 2009, respectively, the applicant's intermediate and senior commanders recommended approval of the applicant's discharge with an under other than honorable conditions discharge.  The intermediate commander noted that the applicant was "clearly a cancer in the battalion and incapable of rehabilitation."

12.  On 15 January 2009, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, by reason of misconduct - commission of a serious offense, with an under other than honorable conditions discharge and reduction to the lowest enlisted grade.  Accordingly, the applicant was discharged on 27 January 2009.

13.  The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c by reason of misconduct - commission of a serious offense, with an under other than honorable conditions discharge.  This form further confirms he completed 1 year, 5 months, and 4 days of creditable active service with 33 days of time lost.  Additionally, this form shows in:

* Item 26 (Separation Code) the entry "JKQ"
* Item 27 the entry "3"
* Item 28 the entry "Misconduct (Serious Offense)"

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  

15.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It states that the SPD code JKQ is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct (serious offense).  The SPD/RE Code Cross Reference Table stipulates that an RE-3 code will be assigned to members separated under these provisions with an SPD code of JKQ.

16.  Army Regulation 635-200 further states that prior to discharge or release from active duty, individuals will be assigned RE codes based on their service records or the reason for discharge.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. Army Reserve.  Table 3-1 included a list of the RA RE codes:

	a.  RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.

	b.  RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible for enlistment unless a waiver is granted.

17.  He submitted a statement, dated 19 May 2010, from a medical doctor who states the applicant developed ITP prior to his discharge.  His condition was treated successfully; however, he developed depression and an adjustment disorder after being mistreated by other Soldiers.  His treatment by various medications led to confusion and disorientation.  He has since been treated and his purpora is resolved.  He now has a positive outlook and would like to reenter military service.  He appears to be medically and psychologically stable to resume his military duties. 

18.  Army Regulation 635-200, paragraph 1-35, states when the examining medical officer decides that a member being considered for elimination for misconduct (chapter 14) does not meet the retention medical standards, he or she will refer that member to a medical board.  The medical treatment facility commander will furnish a copy of the approved board proceedings to the general court-martial convening authority (GCMCA) over the member concerned.  The GCMCA will direct the member be processed through disability channels per Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) when it is determined the disability is the cause or substantial contributing cause of the misconduct or circumstances warrant disability processing instead of administrative processing.

19.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  It provides for medical evaluation boards (MEBs), which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.

20.  Army Regulation 635-40, paragraph 3-1, provides that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

21.  Army Regulation 635-40, paragraph 4-3, states an enlisted member may not be referred for physical disability processing when action has been started that may result in an administrative separation with a characterization of service of under other than honorable conditions.  If the case comes within these limitations, the commander exercising general court-martial jurisdiction over the Soldier may abate the administrative separation.  A case file could be referred to a PEB if the GCMCA finds the disability is the cause, or a substantial contributing cause, of the misconduct that might result in a discharge under other than honorable conditions or other circumstances warrant disability processing instead of alternate administrative separation.

22.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the Veteran's Affairs Schedule for Rating Disabilities.  Chapter 3 lists the conditions that may warrant referral to a medical evaluation board.  Paragraph 3-7 lists the various blood and blood forming tissue diseases as causes for referral to an MEB.  Among those is purpura and other bleeding diseases, when response to therapy is unsatisfactory, or when therapy is such as to require prolonged, intensive medical supervision.

23.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or at least a
30 percent (%) disability rating percentage.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than
20 years of service and a disability rating at less than 30%.

24.  Department of Defense Instruction (DODI) 1332.38 implements policy, assigns responsibilities, and prescribes procedures under References (a) and (b) for retiring or separating Service members because of physical disability, making administrative determinations for members with service-incurred or service-aggravated conditions; and authorizing a fitness determination for members of the Ready Reserve.

25.  DODI 1332.38, section E3.P3.4, states that determining whether a member can reasonably perform his or her duties includes consideration of:

	a.  Common Military Tasks:  Duties, for example, whether the member is routinely required to fire his or her weapon, perform field duty, or to wear load bearing equipment or protective gear.

	b.  Physical Fitness Test:  Whether the member is medically prohibited from taking the respective Service's required physical fitness test. 

	c.  Deployability:  When a member’s office, grade, rank or rating requires deployability, whether a member’s medical condition(s) prevents positioning the member individually or as part of a unit with or without prior notification to a location outside the continental United States. 

	d.  Special Qualifications:  For members whose medical condition causes loss of qualification for specialized duties, whether the specialized duties comprise the member's current duty assignment, or the member has an alternate branch or specialty, or whether reclassification or reassignment is feasible.
DISCUSSION AND CONCLUSIONS:

1.  The applicant committed a series of serious offenses including being AWOL, disobeying a lawful command, making false statements, wrongfully using peyote, stalking female Soldiers, stealing government property, and wearing unauthorized rank.  Accordingly, his chain of command initiated separation action against him under the provisions of Army Regulation 635-200, chapter 14, for misconduct - commission of a serious offense.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

2.  He contends that ITP is the reason for his medications and the medications are the reason of his depression and anxiety and ultimate discharge.  Although he contends he had this condition during BT/AIT, he also successfully completed BT and AIT.  He even went on to serve in his unit for several months before his misconduct.  He also underwent a medical and a mental evaluation, both of which found him fully qualified for retention and/or separation.  Additionally, regardless of whether he was aware of his sulfur sensitivity or not, this condition is controllable and does not, in and of itself, fail either accession or retention standards.

3.  There is insufficient evidence in his record that shows he was physically unfit at the time of his discharge.  A Soldier is considered unfit when the evidence establishes that the Soldier is unable to reasonably perform the duties of his or her office, grade, rank, or rating.  The available evidence shows he was fully able to perform the duties of his grade and fully qualified for separation. 

4.  The nature of his misconduct (AWOL, drugs, disobeying commands, stalking, theft, and false statements) had no relation to any medical conditions he now claims (ITP) and he presented no compelling evidence that other circumstances warranted disability processing in lieu of administrative separation.

5.  He has failed to show through the evidence submitted or the evidence of record that he was medically/physically unfit at the time of separation and he should have been processed for separation due to physical disability.  Therefore, there is no basis for correcting his discharge by reason of misconduct to a medical discharge.

6.  His RE code was assigned based on the fact that he was discharged under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, due to his misconduct - commission of a serious offense.  The underlying reason for his discharge was his serious offenses.  The only valid narrative reason for separation permitted under that paragraph is "misconduct - serious offense" and the appropriate SPD and RE codes associated with this discharge are SPD JKQ and RE-3 which are correctly shown on his DD Form 214.

7.  His desire to join the Army to serve his country is noted.  However, the ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant is advised that if he desires to reenter the military, he should contact a local recruiter who can best advise him on his eligibility for returning to military service.  Those individuals can best advise a former service member as to the needs of the service at the time and are responsible for processing reentry waivers.

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)                                         AR20100028155



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ABCMR Record of Proceedings (cont)                                         AR20100028155



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