IN THE CASE OF:	  

		BOARD DATE:	  15 March 2012

		DOCKET NUMBER:  AR20110016019 


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 records to show he received a medical discharge from the Texas Army National Guard (TXARNG) vice a general discharge
* to be given credit for the 6 months in 2011 that he was assigned to a troop program unit (TPU) but could not drill
* to be allowed to reenlist or be placed in the Individual Ready Reserve (IRR), not the Retired Reserve

2.  The applicant states he was diagnosed with schizophrenia after returning from Iraq, but he was never seen by a medical board and was falsely discharged.  There was an erroneous and unjust entry sent to finance that changed his expiration of term of service (ETS) date.  He stayed in a TPU status until 1 June 2011 incurring a Servicemembers Group Life Insurance (SGLI) debt.  He went to his first sergeant, company commander, and the inspector general.  They admitted there was an error, but he never received compensation.

3.  The applicant provides:

* four letters
* three orders
* two DD Forms 293 (Application for the Review of a Discharge)
* a DA Form 4187 (Personnel Action)
* 17 pages of correspondence to and from the applicant, his unit, and a Member of Congress, dated 6 August 2008 to 16 February 2010
* eight memoranda
* two Defense Finance and Accounting Service (DFAS) Leave and Earnings Statements (LES)
* a DD Form 4836 (Oath of Extension of Enlistment or Reenlistment)
* a Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim)
* eight pages of medical documents
* two DA Forms 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ))

CONSIDERATION OF EVIDENCE:

1.  Having prior service in the U.S. Navy and U.S. Army, the applicant's records show he enlisted in the TXARNG on 17 December 2002 in the rank/grade of specialist/E-4 and he held military occupational specialty 92G (Food Service Operator).  His ETS date was 23 February 2006.  He was assigned to the 3rd Battalion, 133rd Field Artillery, El Paso, TX.

2.  He was mobilized as a member of his ARNG unit in support of Operation Iraqi Freedom (OIF) and entered active duty on 7 September 2004.  He served in Iraq from 1 February to 7 December 2005.

3.  On 8 May 2005, he reenlisted in the TXARNG for a period of 6 years and a bonus of $15,000.00.  The bonus was to be paid in a lump sum on the date his reenlistment took effect (1 day after his then ETS of 23 February 2006).  His new ETS was 23 February 2012.

4.  Section V of Annex R (Reenlistment/Extension Bonus Addendum) to his DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) stated he would be terminated from bonus eligibility with recoupment if he became an unsatisfactory participant by accumulating nine unexcused absences within a 12-month period or separated from the ARNG for any reason unless due to death, injury, or other impairment not the result of his own misconduct.

5.  On 17 January 2006, he was honorably released from active duty to his ARNG unit by reason of completion of required active service.  He completed 1 year, 4 months, and 11 days of creditable active service.

6.  On 1 February 2006, he was again mobilized as a member of his ARNG unit in support of OIF and entered active duty on that date.  He was assigned to Headquarters and Service Company, 449th Aviation Support Battalion, Fort Hood, TX.

7.  On 14 March 2006, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, for wrongfully using a controlled substance on or about 10 February 2006.

8.  On 19 June 2006, he received NJP under the provisions of Article 15, UCMJ, for being absent without leave (AWOL) from 15 to 17 May 2006.  

9.  On 10 March 2007, he was honorably released from active duty to his ARNG unit by reason of completion of required active service.  He completed 1 year, 1 month, and 1 day of creditable active service and accrued 9 days of lost time due to AWOL.

10.  On 6 May 2008, his immediate commander notified him by memorandum that he was charged with four unexcused absences from the multiple unit training assembly (MUTA) from 2 to 4 May 2008.  The memorandum stated he had accrued eight unexcused absences to date within a 1-year period.  He was advised that absences could only be excused by reason of sickness, injury, emergency, or other circumstances beyond his control.  He was also advised that if he had family responsibilities causing a hardship or a civilian job of critical importance, he should contact the commander so he could be advised of the proper procedures to resolve the problem.  If he accumulated nine unexcused absences he could be declared an unsatisfactory participant and would be processed for separation either by reassignment or discharge.  The next MUTA was scheduled for 4 June to 6 June 2008.

11.  There is no evidence that the applicant acknowledged receipt of or responded to this memorandum.

12.  On 8 June 2008, his immediate commander notified him by memorandum that he was charged with four unexcused absences for the MUTA from 4 to 6 June 2008.  The memorandum stated he had accrued 12 unexcused absences to date within a 1-year period.  He was advised that absences could only be excused by reason of sickness, injury, emergency, or other circumstances beyond his control.  The next MUTA's were scheduled for 7 July 2008 and 26 to 27 July 2008.

13.  On 8 June 2008, his immediate commander notified him by memorandum that he was initiating separation action against him under the provisions of Army Regulation 135-178 (Enlisted Administrative Separations), chapter 13, for unsatisfactory participation by accruing more than nine periods of AWOL within a 1-year period.  The commander stated he was recommending the applicant 

receive a discharge under other than honorable conditions and notified him of the procedures and rights available to him.  He was suspending the action for 45 days to give the applicant the opportunity to consult with legal counsel and/or submit statements on his own behalf.

14.  On 8 June 2008, the applicant's immediate commander notified him by memorandum that he was required to turn in all the military property and clothing he was signed for by 27 July 2008.  The commander stated the action was due to the applicant's unsatisfactory participation by acquiring 12  periods of AWOL.  If the military property was not turned in, it would be considered a felony theft and charges would be filed.

15.  Records indicate all three memoranda were returned to the unit by the U.S. Post Office as "unclaimed mail."

16.  On 7 December 2008, his immediate commander notified him by memorandum that he was charged with four unexcused absences from the MUTA from 6 to 7 December 2008.  The memorandum stated he had accrued 18 unexcused absences to date within a 1-year period.  The next MUTA were scheduled for 10 to 11 January 2009.

17.  On 7 December 2008, his immediate commander notified him by memorandum that he was initiating separation action against him under the provisions of Army Regulation 135-178, chapter 13, for unsatisfactory participation by accruing more than nine periods of AWOL within a 1-year period.  The commander stated he was recommending the applicant receive an under other than honorable conditions discharge and notified him of the procedures and rights available to him.  He was suspending the action for 45 days to give the applicant the opportunity to consult with legal counsel and/or submit statements on his own behalf.

18.  On 7 December 2008, his immediate commander notified him by memorandum that he was required to turn in all the military property and clothing he was signed for by 11 January 2009.  The commander stated the action was due to the applicant's unsatisfactory participation by acquiring 12 periods of AWOL.  If the military property was not turned in, it would be considered a felony theft and charges would be filed.

19.  Records indicate all three memoranda were returned to the unit by the U.S. Post Office.

20.  In a memorandum for record, dated 10 January 2009, his immediate commander stated the following:

	a.  On 6 and 7 December 2008, the applicant was AWOL from the MUTA.  The purpose of this was for a medical review which he was ordered to attend as he thought he had a severe mental illness.  On 12 December 2008, the applicant presented a discharge letter from a hospital in Chicago, IL.  However, the hospital was called and stated they had no record of him being a patient there since 1999.  Numerous attempts were made to contact the applicant, but he no longer lived at the address he gave the unit and had listed during a Congressional inquiry.  (The address the unit used is the same address the applicant listed with his application to this Board.)

	b.  On 10 January 2009, he reported to the unit, was informed of the discharge action against him for AWOL and that the hospital had no record of his being a patient, and he was given the number to legal assistance.

21.  Orders 093-1084, dated 3 April 2009, issued by Headquarters (HQ), TXARNG, Austin, TX, discharged him from the ARNG and transferred him to the U.S. Army Reserve (USAR) Control Group (Reinforcement), St. Louis, MO, to complete his remaining Reserve obligation of 23 February 2012.

22.  His National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) confirms he was discharged from the ARNG on 20 March 2009 under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management) for unsatisfactory participation with a general under honorable conditions character of service and a reentry eligibility (RE) code of 3.  He completed 6 years and 28 days of net Reserve service during the period covered by the NBG Form 22.

23.  The applicant provides:

	a.  his DFAS LES, dated 1 February 2010, that shows his ETS date as 23 February 2012, branch as USAR, an SGLI debt balance of $142.10 for the period December 2008 through March 2009, and a reenlistment bonus debt of $7,500.00 for a total debt of $7,642.10;

	b.  a letter from him to HQ, TXARNG,, dated 13 February 2010, wherein he stated he was falsely discharged as the dates the unit said he was AWOL were incorrect;

	c.  a memorandum from HQ, TXARNG, dated 12 March 2010, wherein it listed the dates of his unexcused absences as outlined above;

	d.  a VA Form 21-4138 from him to the VA, dated 5 May 2010, wherein he stated he was submitting medical evidence documenting his treatment for schizophrenia to support his pending claim; and

	e.  Progress Notes, dated 14 May 2010, wherein a psychiatrist with the VA Health Community Services, El Paso, TX, stated the applicant had chronic mental illness/chronic schizophrenia for which he needed medical treatment and counseling.  The psychiatrist further stated the applicant's chronic mental illness was considered a permanent disability and the applicant needed regular follow-up treatment.

24.  Army Regulation 135-178, chapter 13, states a Soldier is subject to discharge for unsatisfactory participation when it is determined that the Soldier is unqualified for further military service because the Soldier is an unsatisfactory participant; attempts to have the Soldier respond or comply with orders or correspondence have resulted in the Soldier's refusal to comply with orders or correspondence; a notice sent by certified mail was refused, unclaimed, or otherwise undeliverable; or verification that the Soldier has failed to notify the command of a change of address and reasonable attempts to contact the Soldier have failed.  Characterization of service normally will be under other than honorable conditions, unless characterization as general under honorable conditions is warranted.

25.  National Guard Regulation 600-200 sets the policies, standards, and procedures for the separation of enlisted Soldiers from the ARNG.  The approval authority to separate Soldiers from the State ARNG is the State Adjutant General.  Soldiers who have a remaining statutory or contractual military service obligation (MSO) will be transferred or reassigned to the IRR to complete their statutory or contractual MSO, whichever expires later.

26.  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.  Under the laws governing the Army Physical Disability Evaluation System, Soldiers who sustain or aggravate physically-unfitting disabilities must meet several line-of-duty criteria to be eligible to receive retirement and severance pay benefits.  One of the criteria is that the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty for training.

27.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the physical evaluation board rates all disabilities using the VA Schedule for Rating Disabilities.

28.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing in the Regular Army, USAR, and ARNG and includes a list of RE codes.

	a.  RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.

	b.  RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible for enlistment unless a waiver is granted.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence of record and the applicant did not provide any evidence that shows he was unable to perform his duties due to a mental or physical disability or had been diagnosed with schizophrenia while he was in the TXARNG.  It appears he informed his commander he thought he had a severe mental illness and a medical review was scheduled for 6 December 2008, but he failed to report as ordered.

2.  In addition, he accrued 18 unexcused absences by 8 December 2008.  Accordingly, his immediate commander initiated separation action against him under the provisions of Army Regulation 135-178, chapter 13, for unsatisfactory participation.  Therefore, he is not entitled to a medical discharge.

3.  With respect to receiving 6 months of credit for being assigned to a TPU in 2011, there is no evidence of record and the applicant did not provide any evidence that shows he served in a TPU after his separation from the TXARNG in March 2009.  Therefore, he is not entitled to the requested relief.

4.  With respect to his request to be allowed to enlist or reenlist, the applicant is advised that if he desires to reenter military service, he should contact a local recruiter who can best advise him on his eligibility for returning to military service.  Those individuals can best advise a former service member as to the needs of the service at the time and may process RE code waivers.

5.  With respect to his request to be placed in the IRR and not the Retired Reserve, the applicant is currently assigned to the IRR until he completes his remaining Reserve obligation (on 23 February 2012).

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)                                         AR20110016019



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ABCMR Record of Proceedings (cont)                                         AR20110016019



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