IN THE CASE OF:	  

		BOARD DATE:  31 May 2012

		DOCKET NUMBER:  AR20110021237 


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 was processed for discharge through medical channels and discharged due to medical reasons (Post Traumatic Stress Disorder (PTSD/Sleep Problems)).

2.  The applicant states:

* he was receiving mental health treatment post deployment
* he was discharged for "Pattern of Misconduct" due to being late to formation
* PTSD should have be considered in determining his discharge
* he should have been "medically boarded" due to his PTSD/Sleep Problems

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Standard Form 600 (Chronological Records of Medical Care), dated between 26 July 2010 and 1 December 2010
* Self-Authored Statement to the Army Review Boards Agency (ARBA), dated 19 October 2011

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) for 4 years on 2 November 2005.  He completed training as a light weapons infantryman.  

2.  The available evidence shows he arrived in Iraq on 5 February 2007.  He departed Iraq en-route to the U.S. on 15 April 2008.

3.  On 11 February 2009, he reenlisted in the RA for 6 years.

4.  The applicant accepted nonjudicial punishment (NJP) on four separate occasions between 31 August 2009 and 2 September 2010 for the following acts of misconduct:

* Failure to go to his appointed place of duty
* Absence without leave (AWOL) (two incidents)
* Failure to obey a lawful order

5.  He was counseled on at least 22 separate occasions between 6 November 2009 and 11 August 2010 for the following:

* Failure to go to his appointed place of duty
* AWOL
* Insubordinate conduct toward a warrant officer, noncommissioned officer, or petty officer
* Failure to obey a lawful order or regulation
* Disobeying a lawful order of a warrant officer, noncommissioned officer, or petty officer
* Missing morning formation
* Failure to secure his barracks room door
* Disrespect toward a superior commissioned officer
* Disobeying a superior commissioned officer
* Performance and professional growth

6.  On 5 March 2010, the applicant was evaluated at the commander's request in the Behavioral Health Clinic at Madigan Army Medical Center to support administrative discharge processing for misconduct.  The attending psychologist determined that he was mentally responsible for his behavior, could distinguish right from wrong, and possessed sufficient mental capacity to participate in any administrative proceedings.  He was cleared for any administrative action deemed appropriate by his command.

7.  On 8 November 2010, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 14-12B, for misconduct.  His commander cited eight incidents of failure to go to formation and two incidents of failure to go to work detail.  He acknowledged receipt of the notification on 17 November 2010.  After consulting with counsel, he submitted a statement requesting that he either be retained in the Army, or honorably discharged due to his extenuating circumstances.  He stated that after he returned from his deployment, he was at the beginning of a divorce from his ex-wife.  He stated that the emotional stress from the divorce and the possibility of never seeing his son again caused him to revert into himself and start to accumulate unwanted thoughts/nightmares from his past deployment.  He stated he took the opportunity to seek help for his mental and emotional problems from the Soldier Readiness Services where he had been receiving treatment for several months.  He states that his problem sleeping caused the SRS doctor to prescribe sleep medication for multiple times over a period of months.  He states he was diagnosed with Obstructive sleep apnea insomnia which caused him to miss formation.  He stated he requested that someone wake him so he could make it to formation in an orderly manner.

8.  In his statement, the applicant contended:

* the missed days for which he was charged were not missed intentionally
* he had been seeking treatment so he could find some stability in his life
* he believed that separation from the Army would put his unborn child, his wife, and himself into a financial crisis
* he realized that he would have to pay back a prorated amount of his reenlistment bonus because he reenlisted for 6 years
* his family was receiving the best possible care through Madigan, Old Madigan, and Nisqually medical clinic
* a general under honorable conditions discharge could cause prejudice in the civilian world and ruin his chance to support his family
* there were many reasons why he believed his chain of command had shown no compassion for his situation
* his commanding officer did not annotate any of his medical problems that may have been the cause of his problems
* his Enlisted Record Brief was flagged before he received his first Article 15, which he believed he received in November 2009
* the flag was backdated to October 2009 and was still on his ERB
* every time he got an Article 15, he requested a rehabilitative transfer and he never received one
* he requested to have someone wake him in the morning or to have a roommate and was told it was not going to happen

9.  The applicant concluded his statement by asserting that he was a good Soldier and he always tried to keep his nose clean.  He stated he could be beneficial to the Army if he were to be given another chance.  He stated that he would have no more incidents and that he would prove he was worthy of retention in the Army.

10.  Along with his statement, the applicant submitted a letter and a memorandum from two individual attesting to his good character and his ability to Soldier.

11.  The appropriate authority approved the recommendation for discharge on 17 December 2010.  On 11 January 2011, the applicant was discharged under honorable conditions (general) under the provisions of Army Regulation 635-200, chapter 14-12B, due to a pattern of misconduct.  He had completed 5 years, 2 months, and 10 days of net active service this period. 

12.  A review of the available records does not show that the applicant had any medically unfitting conditions sever enough to process him for discharge through medical channels.

13.  The applicant submits copies of Standard Form 600 dated between 26 July 2010 and 1 December 2010, which show he was diagnosed with and being treated for PTSD, insomnia, nightmares, anxiety disorder, and obstructive sleep apnea.  He also submits a letter to ARBA in which he reiterates the contentions he made in the statement he submitted after consulting with his counsel, prior to his discharge.

14.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

	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.

15.  Army Regulation 40-501, (Standards of Medical Fitness) paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

16.  Army Regulation 635-40, (Physical Evaluation for Retention, Retirement, or Separation) paragraph 2-2b, as amended, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  His supporting evidence has been considered.

2.  Although he was diagnosed and being treated for insomnia, PTSD, anxiety disorder, obstructive sleep apnea, and nightmares, there is no evidence in the available record which shows that the applicant had any medically unfitting conditions sever enough to process him for discharge through medical channels. He underwent a mental status evaluation prior to his discharge and he was medically cleared for administrative separation.

3.  His records show that he accepted NJP for four separate occasions and he was counseled on at least 22 separate occasions for his numerous acts of misconduct, which were not limited to him oversleeping as he contends.  His acts of misconduct also included disrespect towards superior commissioned officers, disobeying lawful orders, insubordination, and AWOL none of which has anything to do with oversleeping.

4.  In accordance with the applicable regulation 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.

5.  The applicant has not shown error or injustice in the reason and authority for his discharge or the character of his service he received.

6.  In view of the foregoing, his 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)                                         AR20110021237





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ABCMR Record of Proceedings (cont)                                         AR20110021237



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