IN THE CASE OF:	  

		BOARD DATE:	  16 August 2011

		DOCKET NUMBER:  AR20110001876 


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 an upgrade of his general discharge.

2.  The applicant states he did very well in the Army and progressed quickly.  He had ankle reconstruction surgery due to injuries incurred while on duty.  He was prescribed several pain killers that caused him to be depressed.  This, plus the loss of his squad leader who was killed in Iraq, increased his depression and he changed course.  He is ashamed of changing his physical profile which was the reason for his separation from the military.  He feels the Army's failure to properly diagnose his condition caused his separation from the Army.  He states he also discovered a vaccine he was given by the Army in February 1993 called "oral poliovirus vaccine" has the side effect of changing behavior and feels that may be a possible reason for his change in behavior.

3.  The applicant provides copies of a medical record report, one page of an immunization record, one page of a Department of Veterans Affairs (VA) clinical document, a State of Mississippi Professional Certificate, four letters of reference, and a VA compensation award letter.

CONSIDERATION OF EVIDENCE:

1.  His military records show that, after having had prior service in the Army National Guard, he enlisted in the Regular Army on 25 May 1994.  He held military occupational specialty 74F (programmer/analyst).  The highest rank/grade he attained was private first class/E-3.

2.  His records contain copies of counseling statements indicating he missed multiple physical training formations.

3.  A medical record report shows he had surgery on his right ankle on 7 September 1995.  His records indicate he was given a temporary physical profile due to his ankle surgery.

4.  A DA Form 2823 (Sworn Statement) from the unit first sergeant indicated he confirmed with the applicant's doctor that the doctor had issued the applicant a temporary physical profile and that the doctor had also indicated the applicant could deploy to the National Training Center.  The unit first sergeant also indicated in the sworn statement that the applicant had confessed to him that he had altered his physical profile from temporary to permanent to avoid deploying to the National Training Center.

5.  He accepted nonjudicial punishment (NJP) on 1 December 1995 for failing to go at the time prescribed to his appointed place of duty on two occasions and for willfully and unlawfully altering a public record, his DA Form 3349 (Physical Profile), from a temporary to a permanent profile.

6.  A DA Form 3822-R (Report of Mental Evaluation) shows the applicant was seen for a mental status evaluation as part of an examination for administrative discharge from the Army.  The report indicates he had no mental health problems which would require treatment or disposition through medical channels.

7.  On 18 October 1995, he was barred from reenlistment for falsifying a government document and for failing to be at his appointed place of duty on three separate occasions.

8.  On 15 December 1995, the applicant's commander notified him that he was initiating action to separate him by reason of misconduct for the commission of a serious offense of altering a public document.  He was advised of his rights.

9.  On 18 December 1995, he was advised by consulting counsel of the basis for the contemplated action to separate him for commission of a serious offense and its effects, the rights available to him, and the effect of a waiver of his rights.  He acknowledged he might expect to encounter substantial prejudice in civilian life if he were given a general discharge.  He chose not to submit a statement in his own behalf.

10.  On 22 January 1996, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14.  He was given a general discharge.  The DD Form 214 he was issued shows he completed a combined total of 2 years, 8 months, and 24 days of creditable active service and 9 months and 14 days of inactive service.

11.  A copy of a partial immunization record provided by the applicant shows an oral poliovirus vaccine was administered in February 1993.  This document does not indicate whether the record is that of the applicant.

12.  A copy of a VA clinical document provided by the applicant printed on 13 March 2009 shows a diagnosis of an adjustment disorder with anxiety and depressed mood, post-traumatic stress disorder (PTSD) symptoms, stable and improved.  This document does not show the date of the diagnosis.

13.  On 29 November 2010, the Army Discharge Review Board denied his request for an upgrade of his general discharge.

14.  Army Regulation 635-200 (Personnel Separations) 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 consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), 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.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.

15.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  His record shows he accepted NJP for twice failing to go at the time prescribed to his appointed place of duty and for altering a public document (his physical profile from temporary to permanent) in an apparent attempt to avoid deploying to the National Training Center.

2.  The applicant contends his discharge was caused by his mental state due to heavy medication from an extremely painful surgical procedure, the alleged death of his squad leader in Iraq, and possibly from oral polio vaccine administered more than 2 years prior to his offenses for which he was discharged.  He provided a VA clinical document indicating he was diagnosed with PTSD.  This document does not show when the diagnosis was made.  However, there is no evidence he had PTSD or any other mental condition (disorder) while in the military.  His mental evaluation report indicates he met the service retention requirements and his records do not show he served in a combat zone.

3.  The available evidence confirms his rights were protected throughout the discharge process.  Based on his commission of a serious offense, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

4.  His character and post-service conduct as attested to in the supporting statements are noteworthy.  However, his character of service is based on his performance and conduct during the period in which he served.  He has not provided any evidence to mitigate the misconduct he committed during his period of active service; therefore, he has not established a basis to justify upgrading his discharge.

5.  In view of the foregoing, there is an insufficient basis for granting the applicant's 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 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)                                         AR20110001876



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ABCMR Record of Proceedings (cont)                                         AR20110001876



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