BOARD DATE:	  31 January 2012

		DOCKET NUMBER:  AR20110015062 


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 reconsideration of his request for correction of the narrative reason for separation on his DD Form 214 (Report of Separation from Active Duty) to show he was medically discharged in lieu of being discharged due to "unsuitability - traits of character or behavior disorder."

2.  The applicant states, in effect, that all of the evidence was not provided in the original consideration of his application.

	a.  He states that his military occupational specialty (MOS) test scores and Enlisted Evaluation Reports (EERs) were not considered.

	b.  He asserts that his chain of command was intent on having him discharged from the Army.

	c.  He summarizes the 11 counseling sessions that were considered in his discharge action and offers extensive explanations and reasons in rebuttal to the letters of counseling.  He adds that some were "doctored with misinformation" after he signed them.

	d.  He states the Board of Officers' Record of Proceedings are incomplete and contains erroneous information.

	e.  He concludes that his discharge, based on unsuitability - traits of character or behavior disorder, was improper and unjust.

3.  The applicant provides copies of his Department of Veterans Affairs (VA) rating decision and VA medical records.

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 AR20100007791, on 19 August 2010.

2.  The applicant enlisted in the Regular Army on 5 June 1973 for a period of
4 years.  He was awarded MOS 13B (Field Artillery Crewman).

3.  The applicant's records contain the following documents:

	a.  three USAEEC Forms 10 (Enlisted Evaluation Data Reports) that show the following MOS test scores (MOS test score range was from 40 - 160):

	Score		Evaluation Period
	   98		 August 1974
	 101		 February 1975
	 100		 February 1976

	b.  six (6) DA Forms 2166-4/5 (Enlisted Efficiency Reports) covering the period from November 1973 through March 1977.

	 	(1)  From November 1973 through March 1976 (4 EERs) the applicant received favorable performance ratings.

	 	(2)  From April 1976 through March 1977 (2 EERs) the applicant received unfavorable performance ratings.

4.  His records indicate he accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ):

* on 24 May 1974, for failing to go to his appointed place of duty at the time prescribed
* on 21 August 1974, for failing to obey a lawful order issued by a noncommissioned officer
* on 14 November 1974, for possession of marijuana
* on 9 October 1975, for exceeding the posted speed limit
* on 21 December 1976, for failing to go to his appointed place of duty at the time prescribed
5.  On 13 January 1977, the applicant was barred from reenlistment.  The commander cited the applicant's last three NJPs and his numerous counseling sessions as the bases for the bar to reenlistment.

6.  On 27 January 1977, he was diagnosed as having a passive-aggressive personality disorder which was manifested by uncooperativeness and failure to accept responsibility for his actions.  
	
7.  On 1 February 1977, the applicant's commander notified him that he was initiating action to discharge him under the provisions of Army Regulation
635-200 (Personnel Separations - Enlisted Personnel), chapter 13, for unsuitability.  The applicant was advised of his rights.

	a.  The commander provided information pertaining to the applicant's military service record, that included the applicant's:

* poor conduct and unsatisfactory efficiency ratings
* counseling on 11 occasions (3 August, 20 and 21 October,
17 November, 23 November (3 occasions), 7 and 17 December 1976, and 7 and 13 January 1977)
* Bar to Reenlistment
* NJP on 3 occasions (14 November 1974, 9 October 1975, and
21 December 1976)

	b.  The counseling statements contain the statements, "receipt of counseling and advice acknowledged" and "I understand that I must improve my performance and/or conduct or be subject to disciplinary action by my commander."

	 	(1)  The applicant signed all of the counseling statements, with the exception of the one on 7 December 1976.  However, that counseling session was witnessed by an NCO who signed the letter.

	 	(2)  At the time, the applicant did not offer any statements or information in response to any of the counseling sessions.

8.  On 4 February 1977, the applicant consulted with legal counsel and acknowledged he had been advised of the basis for the contemplated action to accomplish his separation.

	a.  He requested consideration of his case by a board of officers and personal appearance before a board of officers.  He also requested representation by his appointed counsel.
	b.  He was advised that he could submit any statements he desired in his own behalf.  The applicant elected not to submit any statements with his request. 

	c.  The applicant and his legal counsel placed their signatures on the counseling statement.

9.  On 25 February 1977, the applicant appeared before a board of officers to determine if he should be discharged for unsuitability.

	a.  He provided a brief history of his civilian education, military training, and assignments in support of his argument that he was not unsuitable for military service.

	b.  He acknowledged being in trouble for possession of marijuana.  He stated, "I feel that I do good work.  I disagree with some of the counseling statements I have received."  He added, "I like the Army and would like to go to another battery, if possible."

	c.  The board recommended that the applicant be honorably discharged from the Army based on unsuitability.

10.  On 8 March 1977, the separation authority approved the board's recommendation and the request for waiver of the rehabilitation requirements.

11.  On 16 March 1977, the applicant was honorably discharged under the provisions of Army Regulation 635-200, paragraph 13-5b(2), by reason of unsuitability - traits of character or behavior disorder.  He completed 3 years,
9 months, and 12 days of active service.

12.  On 12 December 1979, after consideration of the applicant's military records and all available evidence, the Army Discharge Review Board determined that the applicant was properly discharged and denied his request for a change in the type and nature of his discharge.

13.  In support of his request, the applicant provides his VA rating decision, dated 8 February 2005, and VA medical records, spanning the period from 1 January to 1 June 2004, that show the applicant was granted service connection for post-traumatic stress disorder (50%), effective 22 June 2001.  The VA found his claim for personality disorder and bilateral retro patellar pain syndrome were not service connected and not subject to compensation.

14.  Army Regulation 40-501 (Standards of Medical Fitness), in effect at the time, provided information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures.  This regulation stated that character and behavior disorders were considered to render an individual administratively unfit rather than unfit because of physical disability.  This regulation also stated that interference with performance of effective duty would be dealt with through appropriate administrative channels.

15.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  Paragraph 13-5b(2) provided for the discharge of individuals for unsuitability due to character and behavior disorders when it was determined by medical authority that such disorders were chronic and not responsive to attempts at rehabilitation and interfered with the individual's ability to adequately perform their duties.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for reconsideration and correction of the narrative reason for his separation to show he was medically discharged in lieu of being discharged due to "unsuitability - traits of character or behavior disorder" was carefully considered.

2.  The evidence of record shows the applicant chose not to submit any statements in response or rebuttal to any of his 11 counseling sessions, the bar to reenlistment, or at the time he was notified by the commander of his intent to discharge the applicant for unsuitability.  In fact, when the applicant appeared before a board of officers he merely indicated that he disagreed with some of the counseling statements he received.  Now, nearly 35 years later, the applicant offers for consideration a lengthy narrative refuting the numerous counseling sessions.  However, the applicant's recent narrative is insufficient to refute the circumstances and information documented in his military records at the time.

3.  The applicant's MOS test scores, EERs, and service record was considered.  Based on the evidence of record, especially the fact that his record clearly warranted a less than honorable discharge, it is also reasonable to conclude that the applicant's commander, chain of command, and the board of officers considered the applicant's entire military service record prior to rendering their independent recommendations on the proposed separation action.

4.  His VA rating decision was considered.

	a.  He is receiving service connected disability compensation from the VA for PTSD.  However, it is noted that the VA determined the applicant's claim based on personality disorder was not service connected.

	b.  The fact that the VA has awarded the applicant a disability rating for PTSD is a prerogative exercised within the policies of that agency.  It does not establish error or injustice in the decision made by the Army to administratively discharge the applicant for unsuitability.

5.  There is no evidence of record that shows the applicant was found to be medically unfit under the provisions of Army Regulation 40-501.

6.  Records show he was properly processed for discharge through appropriate administrative channels. 

7.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

8.  Therefore, in view of all of the foregoing, it is concluded that the narrative reason for the applicant's separation is appropriate and correct.  

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 AR20100007791, dated 19 August 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)                                         AR20110015062



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ABCMR Record of Proceedings (cont)                                         AR20110015062



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