BOARD DATE:	  20 March 2012

		DOCKET NUMBER:  AR20110012717 


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, under honorable conditions discharge to an honorable discharge (HD).

2.  The applicant states:

	a.  his chain of command was far from "up to standard" and unwilling to help Soldiers with problems that stemmed from their deployment to Iraq;

   b.  Soldiers from his unit were told by the first sergeant (1SG) and company commander to "suck it up and drive on" no matter what their issues were;
   
   c.  having asked for help, he was told the unit did not have time to send him to see a psychiatrist because all available Soldiers were needed for their road commitment as military police (MP);
   
   d.  his primary care physician (PCP) forced his chain of command to send him to get the help he desperately needed for the psychological problems he had both on and off duty;
   
   e.  although he was allowed to seek help, his 1SG said he was becoming a problem, removed him from his MP duties, and placed him on a platoon duty along with seven other Soldiers who were also seeking help;
   
   f.  Soldiers on platoon duty were given every difficult assignment possible;
   
   g.  he was assigned charge of quarters (CQ) duty for nearly 3 months straight with a day off here and there until separation action was initiated against him;
   
   h.  his 1SG told him the Army did not need broken Soldiers and vowed to kick him out with a dishonorable discharge without any benefits;
   
   i.  he was previously diagnosed with post traumatic stress disorder (PTSD), a traumatic brain injury (TBI), and severe insomnia;
   
   j.  his chain of command denied all attempts made by his psychiatrist to transfer him to the Warrior Transition Brigade (WTB) and further dragged him down destroying his Army career forcing him to take a GD; and
   
   k.  he admits to making mistakes while in the Army, but he did nothing to deserve the treatment he received from his unit.
   

3.  The applicant provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty) 
* Memorandum dated 31 October 2008
* DD Form 3349 (Physical Profile)
* Standard Form (SF) 600 (Chronological Record of Medical Care) 4 pages

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 12 August 2004.  He was trained in and awarded military occupational specialty 31B (MP). 

2.  Upon completion of his initial entry training he was reassigned for duty at Fort Hood, Texas on 7 January 2005.  His record includes thirteen DA Forms 4856 (Developmental Counseling Forms) which show he was formally counseled thirteen times during the period 25 January 2005 to 23 April 2006 and for a myriad of disciplinary infractions that include:

* Disobeying lawful orders
* Lying
* Leaving high valued items unsecure
* Army Physical Fitness Test failure (diagnostic)
* Sleeping on duty (dereliction)
* Damaging government property
* Disrespect
* Substandard room condition
* Mismanaging financial affairs
* Improper time management
* Failing to be at the appointed place at the proper time
* Unsatisfactory duty performance
* Continual lying, disobedience, substandard living conditions and financial responsibility
* Negligently discharging a 5.56 caliber (blank) from an M-4 carbine rifle in the sleeping quarters

3.  These thirteen DA Forms 4856 show the applicant was informed eleven times that his continued negative behavior could result in his elimination from the service with less than an honorable discharge; two of which were under chapter 14 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).

4.  The applicant’s record confirms that he twice accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following dates for the indicated offenses:

* 22 April 2006 - failure to perform guard tower duty
* 17 May 2006 - discharging an M-4 Carbine Rifle in the sleeping quarters

5.  His Enlisted Record Brief (ERB) shows he served in Iraq from 21 June 2006 to 20 June 2007.

6.  His record includes twenty one additional DA Forms 4856 which show he was formally counseled twenty-one times during the period 18 September 2006 through 24 July 2008 for a myriad of disciplinary infractions that include:

* Firing 14 rounds when only told to fire three rounds on a live fire range
* Pointing his weapon at an interpreter
* Failing to obey orders (six times)
* Endangering the life of another Soldier
* Deliberately damaging government property
* Verbalizing "I'll do whatever it takes to get out of the Army no matter the cost"
* Lying to a doctor
* Substandard performance
* Failure to be at the appointed place of duty at the appropriate time (5 times)
* Failing to obey parking/traffic laws (as a MP, parked his car on railroad tracks during physical training)
* APFT failure
* Verbal and physical altercation with spouse
* Dereliction
* Continued misconduct and failed rehabilitation attempts

7.  The applicant’s military record contains a Standard Form 600 (Chronological Record of Medical Care) dated 10 April 2007.  It shows a computed tomography (CT) of his head was diagnosed as normal and revealed:

* no evidence of an interparenchymal hemorrhage or infarct [bleeding within the brain; or an area of tissue that has recently died as a result of the sudden loss of its blood supply]
* no extra fluid collections
* bones of the skull were intact
* visualized portions of the orbits and sinuses were unremarkable
* mastoid air cells were clear

8.  The applicant's record includes a MEDCOM Form 699-R (Report of Mental Status Evaluation) dated 6 October 2008.  It shows:

* his behavior was normal
* he was fully alert and oriented
* his mood or affect was anxious
* his thinking process was confused if placed in a stressful situation
* his thought content was normal but impulsive when under stress
* his memory was fair especially under times of stress
* he was mentally responsible
* he met retention requirements
* he had the mental capacity to understand and participate in separation proceedings

9.  The mental status evaluation also shows:

	a.  The applicant met the criteria for PTSD which rose to the level that would render him unfit for continued service as prescribed in Chapter , Army Regulation 40-501.  With a trial of treatment, it was expected the Soldier could not return to full duty status and separation under chapter 5-17, Army Regulation 635-200 should be considered.

	b.  While Soldier is appropriate for any administrative action deemed appropriate by his command, it was recommended his Chapter 14 proceedings be postponed pending trial of treatment not to exceed 3 months at which time reassessment of his condition would be made to return him to duty, process through medical channels, or is more appropriate for administration action as deemed by command.

10.  On 17 October 2008, the applicant’s commander recommended separation from the service under the provisions of Army Regulation 635-200,
chapter 14-12a, for minor disciplinary actions. He recommended he receive a GD and cited the following as the basis for the separation action:  

	a.  Soldier committed negligence:

* through discharging a M-4 carbine rifle in the sleeping quarters
* in performing guard duty in tower, located in Camp Liberty, Iraq

	b.  Soldier was charged with damaging government property, consistently fails to obey orders, fails to pay debts, fails to be present for his duties, shows insubordinate conduct to noncommissioned officers, willfully disobeyed a superior commissioned officer.

c.  Soldier received numerous negative counseling.

11.  On 20 October 2008, the applicant completed his election of rights by waiving consideration of and personal appearance before an administrative separation board (board of officers) and representation by counsel.  He declined to submit any statements in his own behalf.

12.  On 31 October 2008, the separation authority approved the applicant's separation action under the provisions of Army Regulation 635-200, paragraph 14-12a, with issuance of a GD.  

13.  On 31 October 2008, the separation authority approved the findings and recommendation of the administrative separation board and directed the applicant's separation under the provisions of Army Regulation 635-200, paragraph 14-12a, by reason of minor disciplinary action, with GD.  On 14 November 2008, the applicant was discharged accordingly.

14.  The DD Form 214 issued to the applicant upon his discharge confirms he was discharged under the provisions of Army Regulation 635-200, paragraph
14-12a.  It also shows he completed 15 years, 7 months, and 17 days of creditable active service and that he held the rank/grade of private (PV1)/E-1 at the time of his discharge.

15.  On 21 July 2009, the Army Discharge Review Board determined that the applicant's discharge was both proper and equitable and denied relief. 
16.  The applicant provides:

   a.  A SF 600 dated 31 October 2008, prepared during a follow-up appointment in the psychiatric clinic, Carl R. Darnall Medical Center, Fort Hood, Texas which shows he:

* was diagnosed with PTSD, TBI, and asthma
* was pending a chapter 14-12 separation by his command
* was upset about the separation because he was pending a medical evaluation board (MEB) for asthma and will not have benefit for care post discharge
* reports he is doing better with medications and was to continue prescriptions as prescribed
* given a memorandum for transfer to WTB and a profile
* was released without limitations

   b.  A DA Form 3349 shows the applicant was:
   
* placed on a 3 month temporary profile based on his PTSD and TBI
* restricted from performing all functional activities for a permanent or temporary profile
* limited to performing the alternative Army Physical Fitness Test at his own pace
* recommended for transfer to the WTB for 6 - 12 months long term treatment

   c.  A memorandum dated 31 October 2008, addressed to his unit commander, wherein his psychiatrist indicated his PTSD, TBI, and asthma diagnosis and strongly recommended his transfer to the WTB for an estimated 6 months of treatment.

17.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  Chapter 14 deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service.  The regulation specifies that action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  An honorable or a general discharge may be awarded by the separation authority if warranted by the member's overall record of service; however, an under other than honorable conditions discharge is normally considered appropriate for members separated under these provisions.
	b.  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.

18.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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.

   a.  Chapter 3 provides guidance on presumptions of fitness.  It states 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 Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  

	b.  Paragraph 4-3 for separating enlisted Soldiers subject to administrative separation.  It states an enlisted Soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions. 
   c.  If the case comes within the limitations above, the commander exercising general court-martial jurisdiction over the Soldier may abate the administrative separation. This authority may not be delegated. A copy of the decision, signed by the general court-martial convening authority (GCMCA), must be forwarded with the disability case file to the PEB. A case file may be referred in this way if the GCMCA finds the following: 
		(1) The disability is the cause, or a substantial contributing cause, of the misconduct that might result in a discharge under other than honorable conditions. 
		(2) Other circumstances warrant disability processing instead of alternate administrative separation. 


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his GD should be upgraded to a HD because his chain of command was not up to standard, unwilling to help Soldiers with problems stemming from their deployment to Iraq, and denied his psychiatrist’s attempts to transfer him to the WTB for continued treatment, was carefully considered.

2.  The evidence of record confirms that the applicant was counseled at least thirty-six times for acts of misconduct beginning shortly after his initial entry training from 25 January 2005 through 23 July 2008.  He was counseled for thirteen times for prior to his deployment to Iraq.  Therefore, his misconduct began prior to his deployment to Iraq and was not or could not have been the result of any condition incurred during deployment.  He was repeatedly informed his continued negative behavior could result in his elimination from military service with a less than honorable conditions discharge.  His negative behavior continued thereby confirming he knowingly risked his military career and clearly diminished the overall quality of his service below that meriting an honorable discharge.

3.  The evidence of record also confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  Notwithstanding the medical evidence of record which shows the applicant was diagnosed with PTSD, TBI, and asthma, and the recommendation made by his psychiatrist to postpone his pending separation action under the provisions of Army Regulation 635-200, chapter 14, he underwent a mental status evaluation on 6 October 2008, which found no disqualifying mental illness or condition that warranted processing through medical channels.

5.  Further, by regulation, an enlisted Soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions.  The general court martial convening authority in this case found in it necessary to process the applicant for elimination rather than referring him for medical processing, which he was authorized to do.  Accordingly, there is no basis upon which to grant the requested relief in this case.

6.  In view of the above, the applicant's request should be denied.


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)                                         AR20110012717



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ABCMR Record of Proceedings (cont)                                         AR20110012717



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