IN THE CASE OF:
BOARD DATE: 2 August 2011
DOCKET NUMBER: AR20110002456
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 a reconsideration of his application to change his reason for separation from misconduct to unsuitability.
2. The applicant states because the discharge authority failed to date his approval of the separation recommendation it was rendered invalid and jeopardized his rights, making his discharge improper and "equitable." He contends that his offense of escape from custody demonstrates that he had serious problems.
3. Additionally, he contends that he was suffering from a mental condition that impaired his ability to serve and this condition was brushed under the rug.
4. The applicant provides highlighted copies of documentation from his Army Discharge Review Board (ADRB) decision and the prior Board decisional document.
CONSIDERATION OF EVIDENCE:
1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090020745, on 3 June 2010.
2. The applicant provides new arguments which were not previously considered by the Board which warrant consideration at this time.
3. The applicant enlisted in the Regular Army on 20 May 1980. He completed training and he was awarded military occupational specialty 12B (Combat Engineer).
4. The applicant's record shows he received nonjudicial punishment on three occasions under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to follow lawful orders, misappropriation of private property, and escape from custody. He was also in civil confinement from 5-7 November 1981.
5. Additionally, he was counseled on several occasions for alcohol abuse, being absent from his place of duty, misconduct, and disobeying a direct order.
6. The applicant's prior request for a change of his reason and authority for separation was denied based on his commander's opinion that the applicant had the capacity to serve but refused to become a good Soldier. Therefore, separation for unsuitability was not demonstrated whereas his misconduct was well-documented. Additionally, there was no medical evidence to show he had an undiagnosed personality disorder at the time of his separation or for over 20 years after his discharge.
7. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. It states that a separation because of personality disorder is authorized only if the diagnosis concludes that the disorder is so severe that the Soldiers ability to function effectively in the military environment is significantly impaired. Separation for personality disorder is not appropriate when separation is warranted under chapters 4, 5, 7, 9, 10, 11, 13, 14, 15, or 18.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends he had an undiagnosed mental condition at the time of his discharge; however, his contention was carefully considered by the previous Board. The applicant has not provided any new evidence to refute the previous Board's determination or to support his contention at this late date.
2. Further, even if there had been a diagnosis of a personality disorder or any other mental condition at the time of his misconduct and discharge, in the absence of evidence that he was so impaired as to be unable to tell right from wrong or to adhere to the right, his contention of suffering from a mental condition does not mitigate his misconduct which was the basis of his discharge.
3. The fact that the discharge authority's approval of his discharge action was undated is not a procedural error that would have in anyway affected the applicant's rights or due process. Whether or not the form was dated does not constitute a violation of the applicant's due process. The applicant neither provided nor identified any reference to substantiate his argument.
4. Therefore, while the applicant has provided new arguments, these arguments are not convincing and are insufficient to warrant a favorable determination.
5. In view of the foregoing, there is no 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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20090020745, on 3 June 2010.
____________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) AR20110002456
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ABCMR Record of Proceedings (cont) AR20110002456
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