IN THE CASE OF:	  

		BOARD DATE:	  20 October 2011

		DOCKET NUMBER:  AR20110009626 


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 item 28 (Narrative Reason for Separation) as "Adjustment Disorder" vice "In Lieu of Trial by Court-Martial" and that he be assigned a percentage of disability with no reduction of his service-connected disability rating issued by the Department of Veterans Affairs (VA).

2.  The applicant states the following:

	a.  In the past, the combat stress control records he submitted were considered insufficient to justify a change to the reason for his discharge.  Requirements concerning physical examinations to document the medical conditions of service members were skirted in his case.  Certain elements in his chain of command viewed themselves as above regulatory requirements and did not disclose his combat stress control records to the court-martial convening authority in Iraq.

	b.  On 24 September 2003, he submitted a statement to his unit concerning his conscientious objector application.  He saw a psychiatrist and was checked into the combat stress control [clinic] on 12 October 2003.  On 4 November 2003, he was charged with several offenses under the Uniform Code of Military Justice (UCMJ).  He was charged with disobeying a lawful order, resisting arrest, and misconduct, but he is not guilty of any of these offenses.  He did not disobey a lawful order and did not attempt to run from a roving patrol.

	c.  In November 2003, he was reduced in rank, discharged under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), and given an under other than honorable conditions discharge.  In February 2005, the Army Discharge Review Board (ADRB) favorably considered his request for his discharge to be upgraded, restored his rank, and changed the characterization of his discharge to honorable.  In 2006, 2007, and 2008, the ABCMR denied his requests to change the narrative reason for his discharge.  In September 2010, the VA granted him service-connected disability with compensation for adjustment disorder with depressed mood, claimed as post-traumatic stress disorder with adjustment disorder.  

3.  The applicant provides:

* DD Form 214
* Four letters
* Six DA Forms 4856 (Developmental Counseling Form)
* DD Form 689 (Individual Sick Slip)
* Two memoranda
* DA Form 3822-R (Report of Mental Status Evaluation)
* VA Rating Decision
* Ninety-seven pages of medical records dated between March 2009 and May 2010

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.  Having had prior active service, the applicant's records show that he enlisted in the U.S. Army Reserve on 27 August 2001 and he held military occupational specialty 42A (Human Resources Specialist).  He was ordered to active duty in an Active Guard Reserve status on 4 November 2002.  He served in Iraq from 19 April 2003 to 12 November 2003 while assigned to the Headquarters Support Company, 52nd Engineer Battalion.
3.  A DA Form 3822-R, dated 26 September 2003, shows his immediate commander requested a mental status evaluation of the applicant as he was being considered for discharge action.  The examining psychiatrist noted he (the applicant) had no evidence of a major psychiatric disorder or personality defect.  He stated the applicant expressed his desire to remain in the Army in a non-combatant status.  He further stated the applicant met the retention requirements of chapter 3, Army Regulation 40-501 (Standards of Medical Fitness) and he was cleared for any administrative action deemed appropriate by the command and was otherwise returned to full duty.

4.  On 4 November 2003, court-martial charges were preferred against him for the following:

* Two specifications of disobeying a lawful order
* One specification of resisting arrest by running from a roving patrol
* One specification of violating force protection standards

5.  On 4 November 2003, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.

6.  In his request for discharge, he indicated he understood that by requesting discharge, he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also indicated that under no circumstances did he desire further rehabilitation or have a desire to perform further military service.

7.  The separation authority subsequently approved the applicant’s request for discharge in lieu of trial by court-martial.  He was reduced to the rank of private/E-1, discharged on 26 November 2003 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, and issued an under other than honorable conditions discharge.  He completed 1 year and 23 days of active service.

8.  On 16 December 2005, the ADRB approved his request for an upgrade of his discharge, but determined the reason for his discharge was proper and voted not to change it.  The ADRB determined the characterization of service was too harsh and voted to grant relief in the form of an upgrade of characterization of service to fully honorable and to restore his rank/grade to sergeant (SGT)/E-5.

9.  His re-issued DD Form 214 shows he was honorably discharged on             26 November 2003, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, in the grade of SGT/E-5.  This document also shows a Separation Code of “KFS.” 

10.  On 9 November 2006, the ABCMR denied his request that the narrative reason for separation be changed on the grounds that his command gave him an improper amount of time to make a decision prior to him submitting a request for discharge under chapter 10, Army Regulation 635-200.  The Board also denied his request to be reinstated on active duty.

11.  On 7 August 2007 and 18 September 2008, the ABCMR reconsidered his request that the narrative reason for separation be changed and he be reinstated on active duty and denied the request.

12.  The applicant provides a VA rating decision, dated 12 August 2010, wherein it shows the applicant was granted 10 percent service-connected disability for adjustment disorder with depressed mood effective 21 April 2009.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states Medical Evaluation Boards (MEB) 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 qualification for retention based on the criteria in Army Regulation 40-501, chapter 3.

15.  Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-36 (Adjustment Disorders), states situational maladjustments due to acute of chronic situational stress do not render an individual unfit because of physical disability, but may be the basis for administrative separation.

16.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  The VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The VA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  As such, he voluntarily requested a discharge to avoid a trial by court-martial and admitted guilt to the charges.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

2.  There is no evidence in the applicant's records, and he did not provide any evidence, to show that he was diagnosed with or suffered from a psychiatric condition while serving on active duty that warranted a referral to an MEB or led to his discharge.  In addition, an adjustment disorder is not a basis for referral to the physical disability system.

3.  His narrative reason for separation was assigned based on the fact that he was separated under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  This is the only valid narrative reason for separation permitted under that chapter.  His narrative reason for separation is correctly shown on his DD Form 214.  Therefore, he is not entitled to the requested relief.

4.  A disability decision rendered by another agency does not establish error on the part of the Army.  Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining the medical condition of a Soldier at the time of their discharge.  The VA may award ratings because of a service-connected disability that affects the individual's civilian employability.  

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)                                         AR20110009626





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ABCMR Record of Proceedings (cont)                                         AR20110009626



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