IN THE CASE OF:	  

		BOARD DATE:	  5 June 2012

		DOCKET NUMBER:  AR20110022801 


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, in effect, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to:

* change his discharge to a medical discharge or upgrade his characterization of service to honorable
* change his reentry eligibility (RE) code to RE-1

2.  The applicant states he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge from general to honorable.  His request was denied on 24 October 2008.  The decision was in error because he was experiencing a personality disorder at the time of his discharge and therefore was improperly discharged by the U.S. Army.  He should have been medically discharged or given an honorable discharge.  He desires to appear before the Board in person.

3.  The applicant provides his evidence through counsel.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, correction of the applicant's DD Form 214 to change his characterization of service to honorable, his RE code to RE-1, and his reason for discharge to "convenience of the government."

2.  Counsel states the applicant was discharged under Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12b, for patterns of misconduct.  He was discharged because he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), was counseled for missing formation, and "had issues with evading arrest and domestic assault."  The type of discharge seems to be substantiated by his misconduct, but it is not indicative of his actual service record and subsequent medical diagnosis.

3.  The applicant has had a severe decline in his physical and mental state after his discharge and his cognitive ability is substantially impaired.  He was clearly experiencing this decline at the time of his discharge; therefore, much of the behavior that resulted in his misconduct discharge can be attributed to his medical diagnosis of dementia (not otherwise specified) due to pervasive cognitive impairments.  He is dependent on his mother for care.

4.  The linkage between the applicant's military service and the dementia has not been clearly established; however, it is highly likely he was experiencing the beginning phases of his dementia while he was in the Army.

5.  Counsel provides:

* statement from counsel, dated 16 November 2011
* letter from the applicant's mother/timeline of events, dated 17 October 2011
* photographs
* Family Wellness Center psychological evaluation, dated 12 March 2010
* letter from the Department of Veterans Affairs (VA), dated 18 January 2011
* letter from the VA, dated 2 January 2011
* ADRB denial, dated 24 October 2008
* DD Form 214
* Enlisted Record Brief (ERB)
* DA Form 3822-R (Report of Mental Status Evaluation), dated 12 October 2005
* notification of recommended separation memorandum, dated 7 November 2005
* recommendation for separation memorandum, dated 7 November 2005
* Trial Defense Services (TDS) memorandum, dated 9 November 2005
* blank separation counseling memorandum, undated
* memorandum approving separation, undated



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.  The applicant enlisted in the Regular Army on 31 October 2002 and was awarded military occupational specialty 92Y (Unit Supply Specialist).  He was assigned to Fort Bragg, NC, and then to Fort Campbell, KY.  The highest rank/grade he held while serving on active duty was specialist (SPC)/E-4.

3.  His record contains three DA Forms 3975 (Military Police Report).

	a.  On 13 March 2004 while at Walter Reed Army Medical Center (WRAMC), he and his girlfriend had a verbal altercation and he threw a shoebox at her hitting her in the chest.  He admitted to the assault.

	b.  On 31 December 2004, he was arrested in Fayetteville, NC, on a warrant for communicating threats of physical injury.  He was confined by civil authorities upon his arrest pending a bond hearing.

	c.  On 25 August 2005, he was arrested in Clarksville, TN, and incarcerated by civil authorities for domestic assault as a result of a warrant issued by the State of Tennessee on 23 June 2003 for simple domestic assault.

4.  His record shows he accepted NJP under the provisions of Article 15 of the UCMJ on 27 April 2005 for wrongfully wearing unauthorized grade insignia in the grade/rank of SPC/E-4.

5.  His record contains three DA Forms 4856 (Developmental Counseling Form), dated from 17 May 2005 to 1 September 2005, wherein he was counseled for wearing unauthorized grade insignia on his uniform by wearing SPC/E-4 rank, missing formation, evading an arrest warrant, and the issuance of two no contact orders.

6.  His records contains a DD Form 2697 (Report of Medical Assessment), dated 30 August 2005, wherein he indicated he received retinal detachment/cataract surgery while serving in the military.

7.  His record contains a DD Form 2807-1 (Report of Medical History), dated 7 September 2005.  He indicated he was currently in good health but had daily pain from headaches, dizziness, back pain, and woke up three times a night.

8.  His record contains a DD Form 2808 (Report of Medical Examination), dated 7 September 2005, wherein the medical authority indicated the applicant was medically qualified for military service.

9.  His record contains a DA Form 3822-R, dated 12 October 2005, wherein the medical authority indicated the applicant exhibited normal behavior, was fully oriented, his mood was unremarkable, his thinking process was clear, his thought content was normal, and his memory was good.  The medical official also indicated he was mentally capable of understanding and participating in proceedings, was mentally responsible, met medical retention standards, and was psychiatrically cleared for any administrative action deemed necessary.

10.  On 7 November 2005, his commander notified him of his intent to initiate separation action against him for a pattern of misconduct under the provisions of Army Regulation 635-200, paragraph 14-12, and of his recommendation that he be given a general under honorable conditions discharge.  On 15 November 2005, the applicant acknowledged receipt of the notification.

11.  His record contains a memorandum from the TDS noncommissioned officer in charge (NCOIC), dated 9 November 2005, wherein the NCOIC stated he had reviewed the chapter 14 separation packet and determined it was insufficient because it did not contain the required counseling.

	a.  In accordance with Army Regulation 635-200, paragraph 1-18, a Soldier must be counseled prior to initiation of administrative separation under paragraph 14-12b.

	b.  At a minimum, counseling must include the reason for the counseling, that a separation action may be initiated if the behavior continues, the types of discharge that could result from the possible separation action, the effects of each type of discharge, and the member must be afforded ample opportunity to overcome deficiencies.

	c.  TDS could not provide legal advice to the applicant until adequate counseling was contained within the packet, the applicant had been given a reasonable amount of time after the counseling, and there was evidence that the basis for separation still existed.

	d.  Further review of the separation packet revealed that the company commander failed to make a characterization of service recommendation and the applicant had not signed the receipt of notification.

12.  His record contains a memorandum from the TDS NCOIC, dated 6 December 2005, wherein the NCOIC stated the applicant came to the TDS office but was unable to be seen by a trial defense attorney.  The NCOIC stated the applicant had been scheduled for an appointment on 8 December 2005 and requested that he arrive with the complete chapter packet.

13.  His record contains a copy of an appointment card from the TDS office showing he had an appointment on 15 December 2005.

14.  His record contains a memorandum from the Office of the Staff Judge Advocate, dated 27 December 2005, wherein a military attorney indicated he reviewed the chapter 14 elimination packet and found it to be legally sufficient.

15.  His record contains an undated memorandum wherein the separation authority approved his discharge under the provisions of Army Regulation 
635-200, paragraph 14-12b, and directed issuance of a General Discharge Certificate.

16.  On 12 January 2006, he was discharged accordingly.  His DD Form 214 shows he received a general under honorable conditions discharge by reason of a pattern of misconduct.  He completed 3 years, 2 months, and 12 days of creditable active service.  His DD Form 214 shows he was given an RE-3 and a separation program designator (SPD) code of JKA (misconduct).  He was discharged in the rank/grade of private/E-1.

17.  On 24 October 2008, the ADRB reviewed his request to upgrade his discharge and determined he had been properly and equitably discharged and, therefore, denied his request.

18.  Counsel provides a psychological evaluation from a psychologist at the Family Wellness Center, dated 12 March 2010.  The psychologist, a retired Army Medical Corps officer, gave a full assessment of the applicant's mental and cognitive capacities.  The evaluation is extensive and covers the instruments used in the evaluation, the applicant's background information, family dynamics, marital history, medical history, psychiatric history, assessment results, a summary, and recommendations.  This assessment is included for review.

19.  Counsel provides a letter from a VA clinical neuropsychologist, dated 18 January 2011.  This letter refers to the applicant's mother's request for assistance in establishing a claim and an overview of the applicant's medical condition.

20.  Counsel provides a letter from the VA Department of Neurology, dated 25 January 2011.  This letter outlines the applicant's medical condition over a period of time as it progressed.  It also notes that he has suffered from a seizure, has auditory and visual hallucinations, suffers from headaches, has a cognitive and behavior disorder due to a neurodegenerative disorder which has impaired his ability to take care of himself physically, emotionally, and mentally.

21.  Counsel provides a memorandum template, which is normally used when a Soldier being chaptered/discharged consults with legal counsel.  This form/memorandum is meant to show the Soldier was advised of the basis for the contemplated separation, the possible effects of a general discharge under honorable conditions, and the rights available to him.  This form has not been completed and there is no completed version of this form in the applicant's record.

22.  Counsel provides a statement of the applicant's case, dated 16 November 2011.  Counsel's statement was addressed in the "Counsel's Request, Statement and Evidence" portion of the Record of Proceedings.

23.  Counsel provides a letter from the applicant's mother, dated 17 October 2011, wherein she stated:

* as a child he was warm, loving, caring, kind, and presented with quiet and compliant behavior
* he played saxophone in the jazz band in middle school and played football
* he was average performer in high school excelling in track and field
* in 2000, he graduated from high school
* in 2001, he received a track scholarship to Fisk University
* in 2002, he joined the Army and went to airborne school
* in May 2003, he was assigned to Fort Bragg, NC
* in June 2003, a domestic assault charge was initiated by his girlfriend's parents

* his mother notified the police he was stationed at Fort Bragg, NC
* he was deployed to Iraq with his unit

* in October 2003, he was medically evacuated from Iraq to Walter Reed Army Medical Center (WRAMC) to have eye surgery for a detached retina
* in March 2004, he was arrested and charged with simple assault
* sometime during 2004 he returned to his unit at Fort Bragg, NC
* in November 2004, he reenlisted for an assignment at Fort Campbell, KY
* in January 2005, he was arrested for domestic disturbance and communicating a threat
* in February 2005, he returned to Fort Campbell, KY (at this time his mental status was questionable to make reasonable decisions)

* the family noticed personality changes when he began exhibiting anger, defiance, aggression, using profanity, becoming angry during conversations, and injuring his sister

* in April 2005, he received NJP under Article 15 of the UCMJ for wearing the improper rank of SPC
* in August 2005:

* he was arrested for an outstanding warrant for the incident with his girlfriend that occurred in June 2003; however, he was unaware a warrant had been issued
* he was counseled for missing formation; however, his mother informed his unit that this was because he had been arrested and could not attend formation

* in September 2005, he was counseled for evading an arrest warrant he had no knowledge of
* in October 2005:

* he was notified of the chapter 14 separation proceedings
* he received a mental health evaluation; however, the misconduct block was not checked so he missed the opportunity for help

* in January 2006, he received a general discharge under honorable conditions

* he came home to live for awhile and would sleep late; isolate himself in his room; became very disorganized and consistently lost things; and exhibited low motivation/energy, increased defiance, and rigid stubborn behavior

* in August 2006, he was charged with simple assault of a family member

24.  Counsel provides several photographs of the applicant and his athletic awards.

25.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, 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.

26.  Army Regulation 635-200, 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.

27.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing in the Regular Army, U.S. Army Reserve, and Army National Guard.  Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes.  RE-3 applies to persons not qualified for continued Army service but the disqualification is waivable.

28.  Army Regulation 635-5-1 (SPD Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD codes to be used for these stated reasons.  The regulation shows that SPD code JKA as shown on the applicant's DD Form 214 specified the narrative reason for separation as involuntary release or transfer for "misconduct" and the authority for separation under this SPD as "Army Regulation 635-200, paragraph 14-12b."

29.  Army Regulation 635-5 (Separation Documents), table 2-3 (SPD/RE Code Cross Reference Table), establishes RE code 3 as the proper reentry code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct.

30.  Army Regulation 635-200, paragraph 1-35, states that when the examining medical officer decides a member being considered for elimination for misconduct (chapter 14) does not meet the retention medical standards, he or she will refer that member to a medical board.  The medical treatment facility commander will furnish a copy of the approved board proceedings to the commander exercising general court-martial authority (GCMCA) over the member concerned.  The commander exercising GCMCA will direct the member to be processed through disability channels per Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) when it is determined that the disability is the cause or substantial contributing cause of the misconduct or circumstances warrant disability processing instead of administrative processing.

31.  Army Regulation 635-40 establishes the 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.  It provides for medical evaluation boards (MEB's), which 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 qualifications for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.

32.  Army Regulation 635-40 further provides that if the MEB determines a Soldier does not meet retention standards, the case will be referred to a physical evaluation board (PEB).  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  It also investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  It evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

33.  Army Regulation 635-40, paragraph 4-3, states an enlisted member may not be referred for physical disability processing when action has been started that may result in an administrative separation with a characterization of service of under other than honorable conditions.  If the case comes within these limitations, the commander exercising general court-martial jurisdiction over the Soldier may abate the administrative separation.  A case file could be referred to a PEB if the GCMCA finds the disability is the cause or a substantial contributing cause of the misconduct that might result in a discharge under other than honorable conditions or other circumstances warrant disability processing instead of administrative separation.

34.  Army Regulation 15-185 (Army Board for Correction of Military Records), paragraph 2-11, states that applicants do not have a right to a formal hearing before the ABCMR.  The Director of the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  Counsel contends the behavior which resulted in the applicant's misconduct discharge was directly attributed to his medical diagnosis of dementia and therefore his character of service should be changed to a medical or an honorable discharge, his RE code should be changed to RE-1, and his narrative reason for separation should be changed to the convenience of the government.

2.  His record shows he was charged with assault on several occasions, was incarcerated by civil authorities, received NJP under Article 15, received negative counseling on numerous occasions, and evaded arrest.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

3.  Further, a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under paragraph 14-12b; however, he received a general discharge under honorable conditions clearly indicating that his chain of command considered his overall service.

4.  The applicant was discharged from active duty under the provisions of Army Regulation 635-200, paragraph 14-12b, based on misconduct with a separation code of JKA and was assigned an RE code of RE-3 in accordance with the governing regulation in effect at the time.

5.  The applicant's RE code is based on his reason for discharge and cannot be changed unless the applicant's narrative reason for discharge is changed.  His narrative reason for separation was based on misconduct – pattern of misconduct – and there is no basis upon which this reason should be changed.

6.  There is no evidence in his military records and counsel failed to submit sufficient evidence to show the applicant suffered from this medical condition while he was serving on active duty, that the condition was the cause of his misconduct during his period of service, or that he suffered from a medical condition that would have warranted entry into PDES.  The applicant was examined by competent military medical officials who found he was medically and psychiatrically fit for military duty at the time of his separation.

7.  Although the applicant requested to personally appear before the Board, there was sufficient evidence available for fair and impartial consideration of his case.

8.  The applicant's discharge accurately reflects his overall record of service.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  In view of the foregoing, there is no basis for granting relief in this case.

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)                                         AR20110022801



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ABCMR Record of Proceedings (cont)                                         AR20110022801



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