IN THE CASE OF:	  

		BOARD DATE:  16 August 2012

		DOCKET NUMBER:  AR20110024982 


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

2.  The applicant states:

	a.  upon completion of his initial entry training and after his reassignment to Fort Hood, Texas, he deployed with his unit to Mosul, Iraq, where he performed the duties of a "prison guard";

   b.  he performed his duties as expected, received many awards, and served 15 months without any disciplinary problems;
   
   c.  his problems started once he returned home to Fort Hood, Texas when he started to have dreams/nightmares of the combat he witnessed in Iraq;
   
   d.  he began to get into fights with his peers, self medicate with drugs, and misuse his medication which ultimately led to his receipt of a GD;
   
   e.  after his discharge from the Army his family and girlfriend persuaded him to seek medical attention at that Department of Veterans Affairs (VA) and private hospitals;
   
   f.  he was diagnosed with post-traumatic stress disorder (PTSD) as a result of his military service for which he receives disability compensation from the VA; and
   g.  he should have received an HD because his conduct that led to his receipt of the GD was caused by his PTSD condition.

3.  The applicant provides a self-authored statement and twenty-five pages of medical record document extracts.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 16 February 2006.  He was trained in and awarded military occupational specialty 74D (Chemical Operations Specialist).

2.  His Enlisted Record Brief (ERB) shows he served in Iraq from 8 February 2008 through 18 January 2009.

3.  His military record contains a DA Form 3975 (Military Police Report) dated 10 March 2009, which shows:

* he rented an automobile from Hertz Rental for the period 20 - 24 January 2009
* as of 10 March 2009, the automobile had not been returned
* the applicant was accused of "wrongful appropriation of a privately owned vehicle"

4.  His military record includes two DA Forms 4187 (Personnel Action) dated 27 March and 17 April 2009, which show he was reported absent without leave (AWOL) on 25 March 2009 and present for duty on 16 April 2009, respectively.

5.  On 12 May 2009, the applicant was referred to the Army Substance Abuse Program (ASAP) and admitted to the Red River Hospital for cocaine, marijuana, and alcohol use several times weekly, poor sleep, increased anxiety.  He was diagnosed:

* AXIS I:
- Polysubstance abuse
- Major depressive disorder
- Moderate recurrent PTSD

* AXIS II:
- Deferred

6.  On 16 June 2009, he was discharged from the hospital under a plan to obtain a sponsor, continue in the ASAP, attend follow-up appointments with community mental health service, and take medication as prescribed.

7.  On 2 July 2009, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 121 of the Uniform Code of Military Justice for wrongfully appropriating a 2009 Toyota Camry, valued at $18,000.00, the property of Hertz Vehicles LLC.

8.  On 20 July 2009, pursuant to his plea, a summary court-martial (SCM) convicted the applicant of the wrongful appropriation of a Hertz vehicle.

9.  On 17 August 2009, the applicant underwent a mental status evaluation that showed the following:

* his behavior was passive
* his thought content was normal
* he was fully alert and oriented
* his mood was depressed
* his thinking process was clear when not under stress
* his memory was good when not under stress
* he was mentally responsible
* he met retention requirements
* he had the mental capacity to understand and participate in separation proceedings

10.  The mental status evaluation also showed the applicant:

* denied homicidal ideation
* was mentally sound and able to appreciate any wrongfulness in his conduct and able to conform his conduct to the requirements of the law
* could continue with separation processing under chapter 14, Army Regulation 635-200
* had an unremarkable traumatic brain injury (TBI) screening
* had a remarkable PTSD screen (due to deployment) with symptoms that were currently being treated
* may qualify for separation under paragraph 5-17, Army Regulation 635-200, medical evaluation board, reclassification, or some other type of discharge upon completion of his treatment plan


11.  On 3 September 2009, the unit commander notified the applicant he was initiating action to separate him for the commission of a serious offense with a GD.  The unit commander cited the applicant's wrongful appropriation of the 2009 Toyota Camry on 24 January 2009 and his positive urinalysis for marijuana use on 29 April 2009 as the basis for his separation action.

12.  On 8 September 2009, the applicant consulted with legal counsel and he was advised of the basis for the contemplated separation action and its effects.  Subsequent to this counseling, he elected to waive representation by counsel.  He elected not to submit a statement in his own behalf.

13. On 8 September 2009, the applicant's defense counsel submitted a memorandum to the unit commander.  He indicated he was concerned about the applicant's mental history and advised:

   a.  the applicant should be referred to an MEB for a medical separation;
   
   b.  based on the mental status evaluation, the applicant suffered from PTSD and as such it seemed prudent to exhaust medical channels prior to administrative separation; and
   
   c.  When the medical treatment facility commander or attending medical officer determines that a Soldier being processed for administrative separation under chapters 7, 14, or 15, does not meet the medical fitness standards for retention, he or she will refer the Soldier to an MEB in accordance with Army Regulation 40-3, chapter 7.  The administrative separation processing will continue, but final action by the separation authority will not be taken, pending the results of the MEB.
   
14.  On 10 September 2009, the separation authority approved the applicant's separation action, waived further rehabilitation requirements, and directed the applicant receive a GD Certificate.

15.  On 18 September 2009, the applicant departed AWOL for a second time.

16.  On 18 September 2009, the unit commander directed the applicant's clearance in absentia based on his non-availability.

17.  On 24 September 2009, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 14-12c(2) with a GD.  He completed 3 years, 2 months, and 29 days of creditable active service.  

18.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time of his discharge shows he was discharged by reason of "Misconduct (Drug Abuse) and he was assigned a separation code of JKK.

19.  The applicant provides six pages of medical record document extracts reflecting treatment he received while on active duty from 12 May - 7 July 2009.  He also provides 19 pages of medical record documents reflecting post medical treatment he received from 29 October 2010 through 22 July 2011.

20.  On 22 February 2011, after having carefully reviewed the applicant’s record, the Army Discharge Review Board (ADRB) determined administrative errors occurred in the preparation of his DD Form 214 and directed correction action be taken to correct the following items accordingly:

* item 26 (Separation Code) -  replace the entry "JKK" with "JKQ"
* item 28 (Narrative Reason for Separation) - replace the entry "Misconduct (Drug Abuse)" with "Misconduct (Serious Offense)"

21.  On 22 February 2011, a new DD Form 214 was prepared to reflect the corrective action taken by the ADRB.

22.  The applicant provides a medical prescription from the Pathways Community Behavioral Healthcare, Incorporated dated 15 February 2011.  It lists his multiple diagnoses which include PTSD.

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

	a.  Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.  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.

24.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System and sets forth the 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 states that a Soldier who is charged with an offense or is under investigation for an offense for which he could be dismissed or given a punitive discharge may not be referred for disability processing.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his GD should be upgraded to an HD because the actions that led to his discharge were caused by or were the result of his PTSD condition.  Contrary to his claim and the assertions made by the defense counsel in this case, the medical evidence of record confirms competent medical authority cleared the applicant for continued separation processing under the provisions of chapter 14, Army Regulation 635-200.

2.  The evidence of record confirms his SCM conviction for wrongful appropriation of a vehicle valued at $18,000.00 and his positive urinalysis resulting from his use of marijuana.  Through his misconduct, he knowingly risked a 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.  Absent any evidence of error or injustice related to the applicant's discharge processing, there is an insufficient evidentiary basis to support an upgrade of his discharge.






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)                                         AR20110024982





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ABCMR Record of Proceedings (cont)                                         AR20110024982



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