IN THE CASE OF:	  

		BOARD DATE:	  28 June 2011

		DOCKET NUMBER:  AR20110009499 


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.  Through a court remand from the U.S. District Court for the District of Columbia, Washington, DC, the applicant requests, in effect, reconsideration of his earlier petitions to the Army Board for Correction of Military Records (ABCMR) for correction of his record by either upgrading his discharge under other than honorable conditions:

	a.  to an honorable discharge, or in the alternative;

	b.  to a general discharge, and changing his Reentry Eligibility (RE) code to a code that will allow him to possibly reenter the military.

2.  The U.S. District Court for the District of Columbia, Washington, DC, directs that the 18 June 2009 decision of the ABCMR be withdrawn and that the ABCMR make a fresh determination respecting the applicant's application as an appeal for relief from the Army Discharge Review Board's (ADRB) 6 October 2008 decision based upon all the evidence before it.

3.  The applicant states, in effect:

	a.  He always dreamt of becoming a police officer someday and was advised that his best chance for becoming one was to either work for 3-5 years as a seasonal police officer or to gain military experience.  So, he decided to join the Army and become a military policeman (MP).  Although slots for the MP military occupational specialty (MOS) were not available at the time, the recruiter led him to believe that if he enlisted as an infantryman and proved himself during basic training he would be able to change his MOS.

	b.  During the last week of training, he tripped and fractured his tailbone and reinjured his back which had initially been injured during a fall prior to enlisting.

	c.  His chain of command was not supportive of his desire to either switch MOSs or to be voluntarily discharged from the Army.  Based upon advice from his battalion chaplain he wrote letters to his senator and congressional representative to see if they could investigate the possibility of switching his MOS.

	d.  When his unit commander found out about the investigation, he was called into the commander's office and informed that the remaining 3.5 years of his service would be a living hell.  At this point, retribution began and he was subjected to every extra duty imaginable, 2 months of being illegally confined to the barracks, always being the Soldier "randomly selected" for drug testing, etcetera.

	e.  Although he was consistently still on a physical limitations profile due to his fractured tailbone and lower back injury, he tried to perform his duties to the best of his abilities.  He attests that he was never given sufficient time to heal.

	f.  At the time of his offenses, he contends his chain of command wanted to make an example of him because he was 24 years of age so, instead of issuing him nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), they just decided to court-martial him.

	g.  During his summary court-martial proceedings he was offered an administrative discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations).  His legal counsel informed him that he was winning his court-martial case and informed him that if he accepted the chapter 10 discharge he would be out of the Army within 72 hours, but his service may be characterized as under other than honorable conditions.  Legal counsel also informed him that he could apply for an upgrade after a year.  So, he took the chapter 10 discharge in order to avoid three more years of hell from his chain of command and believed that he could apply for and receive an upgrade at a later date.

	h.  He is trying to reenlist in the Reserve to further serve his country.  For several years he has been trying to fulfill his dream of becoming a police officer and has been rejected by every agency or been placed very low on the eligibility list because of his less than honorable discharge. 
	i.  He contends that he has several references from current law enforcement officers and longtime friends, an excellent grade point average from college, excellent work references, a concealed weapons permit, scored 91 out of a possible 100 on the Criminal Justice Basic Abilities Test, passed every Physical Abilities Test given, and has a clean criminal and driving record.  He concludes his discharge does not in any way reflect the way that he has lived his life.

4.  The applicant provides the following additional evidence all of which (with the exception of the first one) were previously submitted with each of his ADRB and ABCMR applications:

* an appeal rendered by his attorney, dated 12 January 2009
* a self-authored statement, dated 16 August 2005
* college transcripts
* a letter showing he made The Dean's List at his college for Fall semester 1997
* a letter showing he made The National Dean's List for 1997-1998
* six character reference letters
* a Senatorial Scholarship Certificate, dated 30 December 1997
* three certificates of recognition from the Kmart Corporation

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the 18 June 2009 decision of the ABCMR be withdrawn and that the applicant’s case be reconsidered by the Board as a matter of equity, due process, clemency, and as justice so requires.  

2.  Counsel states, in effect, that the court remand action requires the applicant be provided the opportunity to have his case considered using all the evidence he has, to include the new facts, arguments, and evidence he now submits.  

3.  Counsel provides a petition for reconsideration of the ADRB's 6 October 2008 decision to deny the applicant's request for an upgrade of his discharge.  This petition consists of a 5-page statement essentially addressing the following topics:

* the Army failed to accommodate the applicant's injuries and then punished him for his service-connected injuries
* the applicant was punished for his testimony at his trial and for contacting his Congressman
* the applicant did not receive a medical examination before his discharge


CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in previous considerations of the applicant's case by the:

* ABCMR in Docket Number AC97-05909 on 8 April 1998
* ADRB Records Review in Docket Number AR20060010487 on 25 July 2007
* ADRB Personal Appearance in Docket Number AR20080008636 on 6 October 2008.  

2.  His record contains a DD Form 2246 (Applicant Medical Prescreening Form), dated 7 February 1995, and an associated extract from his civilian medical records which show he underwent arthroscopic surgery on his right knee subsequent to an injury sustained when he fell down some stairs at his civilian place of employment.  

3.  His enlistment contract shows he specifically enlisted for the infantry career management field which entitled him to a $6,000 cash enlistment bonus.  His contract contains no indication he was offered or promised training in any other MOS.  His DA Form 3286-63 (Statement for Enlistment U.S. Army Training Enlistment Program) and DA Form 3286-66 (Statement of Understanding U.S. Army Incentive Enlistment Program) show he indicated he had read and understood the statements and terms of his contract and they constituted all promises and guarantees whatsoever concerning his enlistment.  No other (verbal or otherwise) promise or representation not annexed to his enlistment contract was valid or would be authorized.  He stated he had NOT [emphasis added] been promised anything other than what was written on this form and hereby waived any claim based upon any promise or representation not annexed to his contract.  He further stated he had provided his recruiter and guidance counselor all information concerning his qualifications and that no official in the U.S. Army or any other agency had advised him to conceal, nor had he concealed information in connection with his enlistment.  He authenticated this contract on 13 March 1995.

4.  He enlisted in the Regular Army for a period of 4 years on 13 March 1995 and upon completion of initial entry training (IET) he was awarded MOS 11B (Infantryman).  The highest rank/pay grade he attained while serving on active duty was private (PV2)/E-2.  However, at the time of his discharge, he held the rank/pay grade of private/E-1.

5.  Upon completion of IET he was assigned to 2nd Battalion, 22nd Infantry Regiment, 10th Mountain Division, Fort Drum, NY, where he remained until his discharge.

6.  A Standard Form 600 (Chronological Record of Medical Care), dated 21 July 1995, shows he sought treatment and was examined for an injury he sustained as a result of falling on his tailbone when he was running backward up a hill a month prior.  The examining physician requested an x-ray of his back to determine whether he had fractured his sacrum or coccyx.  A Standard Form 519-B (Radiologic consultation Request/Report), dated 21 July 1995, shows the x-ray was taken and no fractures were seen by the examining physician.

7.  A Standard Form 600, dated 7 August 1995, shows he complained of constant back pain and he had a contusion on his tailbone.  As a result, he was issued a DA Form 3349 (Physical Profile), dated 7 August 1995, which restricted him to executing physical training at his own pace and distance until 21 August 1995, a period of two weeks.

8.  A DA Form 4856 (General Counseling Form) shows he was counseled on 9 August 1995.  The catalyst for this counseling session was the fact he had informed members of his leadership team (his squad leader/sergeant, platoon sergeant/sergeant first class, and platoon leader/second lieutenant) that he desired to get out of the Army because of his failure to adapt.  His leaders told him they would not give him an administrative separation based solely upon his desire to get out.  He in turn stated he may take a course of action on his own to provoke the commander into giving him an administrative discharge.  His leaders advised him that any action he took that broke a rule or a regulation could result in disciplinary action under the provisions of the Uniform Code of Military Justice (UCMJ).  He was reminded that he had an obligation to the Army and that he should do his best to fulfill that obligation.

9.  A Standard Form 600, dated 18 August 1995, shows he complained of pain in his mid-lower back and his right knee for the past 4 days as the result of injuries he sustained during a road march.  The examining physician prescribed pain and anti-inflammatory medications and the application of ice packs.  The physician also recommended he be restricted to executing physical training at his own pace and distance for a period of one week.

10.  A Standard Form 600, dated 21 August 1995, shows he complained of back spasms and numbness in his fingers on both hands since for a period of 3 days.  He informed the examining physician he'd had lower back pain for years (existed prior to service (EPTS)).  The examining physician noted there was no obvious deformity, but prescribed pain and anti-inflammatory medications and the application of ice packs.  The physician also recommended he be restricted from executing physical training or lifting more than 20 pounds.

11.  A Standard Form 600, dated 23 August 1995, shows he complained of lower back pain since 1989 and that he did not inform personnel at the Military Entrance Processing Station (MEPS) of his current medical problems.  He found that the infantry was not what he expected it to be and stated "I can't handle it."  He informed the physician he wanted to get out of the Army or his MOS.  He indicated a 6-mile road march on 21 March 1995 caused his recent flare up of lower back pain.  Although he was seen by medical authorities on 16 and 21 August 1995, he returned because the pain did not go away.  The physician referred him to the Radiology department and recommended he be restricted to executing physical training at his own pace and distance until 30 August 1995, a period of one week.

12.  A Standard Form 519-B, dated 24 August 1995, shows the Radiology department took images of his lumbosacral spine which revealed the lumbar vertebral bodies were well mineralized and properly aligned.  There was no evidence of fractures or sublaxations.  No spondylolysis or spondyliolisthesis was present.  The examining physician determined his overall impression was "Normal."

13.  A DA Form 4856, dated 31 August 1995, shows he was counseled for deserting his guard post without being properly relieved on 29 August 1995.  He was advised that this type of action could cost time and lives and would not be tolerated.  He was advised that if that action occurred again, UCMJ action would be taken.

14.  A DA Form 4856, dated 31 August 1995, shows that during his monthly counseling for August 1995, he was informed that his performance had been unsatisfactory.  He showed little or no motivation.  He was on a physical limitations profile the entire month and did not make an effort to pull his weight in the squad.  He was advised that this behavior had to improve overnight due to upcoming deployments.  He was further advised that he needed to improve in all areas of Soldiering; he must act like and want to be a Soldier; and he must pull his own weight in the squad.

15.  A Standard Form 600, dated 13 September 1995, shows he sought medical treatment because he had hurt his back, neck, and right knee while in the field the week prior.  He also complained of difficulty hearing out of both ears and experiencing headaches often.  The examining physician noted the applicant had been evaluated several times for having complaints by four physicians' assistants.  He had been treated, prescribed non-steroidal anti-inflammatory drugs (NSAID), given limited duty, and given muscle relaxants.  His initial entry medical examination showed evidence of a previous back injury.  The physician stated he suspected the applicant was using a pre-entry problem to get out of a job which is not what he thought it would be.  He contacted the applicant's first sergeant (1SG) and briefed him accordingly.  He noted the applicant had been on active duty for 6 months and expressed a strong desire to get out of the Army.  The physician referred him to his chain of command and returned him to duty.

16.  A DA Form 4856, dated 28 September 1995, shows he was counseled for missing formation and reporting for duty 45 minutes late.

17.  His record contains DA Forms 2823 (Sworn Statement) rendered as shown below:

	a.  Three separate statements rendered by his squad leader, platoon sergeant, and platoon leader for refusing to pick up, wear, carry, and/or drag his rucksack to the platoon's new location on 16 September 1995 because he stated his back was hurting.  Based upon the applicant's history of malingering, the platoon leader ordered him to put on his rucksack once again prior to calling the company commander.  His refusal to comply with direct orders from each of his leaders delayed the entire platoon's movement.

	b.  On 2 November 1995, the 1SG for Headquarters and Headquarters Company, 1st Brigade, 10th Mountain Division (Light), rendered a sworn statement wherein he stated the applicant attempted to harm himself on or about 16 October 1995 by taking a couple bottles of different pills (Robaxin (a muscle relaxant, is used with rest, physical therapy, and other measures to relax muscles and relieve pain and discomfort caused by strains, sprains, and other muscle injuries) and Ibuprofen (an NSAID used to treat minor aches and pains caused by the common cold, headaches, toothaches, back or muscle aches)).  The applicant informed the 1SG he did this because of the severe pain in his back.  The 1SG also noted the applicant told him he had problems in his unit and he had tried to get their attention for help because he did not want to be in the service and wanted out.  The applicant said by working at the brigade level he would get help.  The 1SG assured him he would be okay and had him medically evacuated from the training area to the hospital.

18.  His record contains a DD Form 458 (Charge Sheet), dated 14 February 1996, which shows he was charged with violation of the following articles and specifications of the UCMJ as indicated below:

	a.  Three specifications of violating Article 86:

		(1)  29 August 1995, for deserting his guard post without being properly relieved;

		(2)  14 September 1995, for failing to go at the time prescribed to his appointed place of duty; and

		(3)  28 September 1995, for failing to go at the time prescribed to his appointed place of duty.

	b.  One specification of violating Article 90 by willfully disobeying a lawful command from a superior commissioned officer on 16 September 1995.

	c.  One specification of violating Article 115 by, for the purpose of avoiding service as an infantryman during a Joint Readiness Training Center exercise, feigning physical disablement or intentionally injuring himself by consuming two bottles of pills on 16 October 1995. 

	d.  One specification of violating Article 134 by wrongfully straggling during a training exercise on 16 September 1995.

19.  On 4 March 1996, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an undesirable discharge, and of the procedures and rights that were available to him.  Following counseling, he submitted a voluntary written request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200.  In his request for discharge he indicated he understood that by requesting discharge, he was admitting guilt to a charge against him or of a lesser included offense that also authorized the imposition of a discharge under other than honorable conditions.  He acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

20.  His record contains a Standard Form 88 (Report of Medical Examination) and a Standard Form 89 (Report of Medical History) which show he underwent a preseparation medical examination on 14 March 1996.  These documents show he was not diagnosed with any significant illnesses, defects, or conditions at the time and he was medically qualified for separation.

21.  His chain of command unanimously recommended approval of his request for discharge for the good of the service.
22.  On 25 March 1996, the separation authority approved his request and directed that he be reduced to the lowest enlisted grade (PV1/E-1) and discharged under Other Than Honorable Conditions.  He also stated the court-martial charges against the applicant would be dismissed effective the date of his discharge.

23.  On 29 March 1996, he was discharged under the provisions of chapter 10, Army Regulation 635-200 in lieu of trial by court-martial.  He was credited with 1 year and 17 days of creditable active duty service and his service was characterized as "Under Other than Honorable Conditions."  He was assigned a separation program designator (SPD) code of "KFS" and an RE code of 3.

24.  His record is void of any evidence and neither he nor his counsel has provided any evidence other than his own statements showing that he:

* requested or was denied reclassification to an MP MOS
* sought assistance with reclassifying to an MP MOS from a Congressman
* was inhibited from going to and remaining at his place of duty due to medication and pain from his injuries
* was diagnosed with a psychological or psychiatric condition
* was denied psychological or psychiatric counseling
* experienced any traumatic event while serving in the Army
* testified as a witness in a court-martial case regarding the loss/theft of a weapon
* rendered a sworn statement in connection with a Criminal Investigation Command (CID) investigation regarding the loss/theft of a weapon
* attempted to contact his Congressman
* suffered any form of reprisal by his command for testifying at a trial or contacting his Congressman

25.  On 24 July 2006, the applicant submitted an application to the ADRB wherein he requested to have his under than honorable conditions discharge upgraded to an honorable discharge.  He stated he had applied for employment with the Boynton, Beach, FL Police Department and the only reason he had not been hired was the status of his discharge.  He asked the ADRB to conduct a record review of his discharge based on his military personnel file and any additional documentation submitted by him.  As additional evidence, he submitted all of the documents listed in the beginning of this Record of Proceedings (less the appeal rendered by his attorney, dated 12 January 2009).  On 1 August 2007, the ADRB informed him that the board reviewed his application, military records and all available evidence and determined he was properly and equitably discharged and his request was denied.

26.  On 9 May 2008, the applicant submitted an application to the ADRB wherein he requested to appear in person in order to appeal to have his under other than honorable conditions discharge upgraded to an honorable discharge.  As additional evidence, he submitted the exact same documents which had previously been considered by the ADRB during his records review consideration in 25 July 2007.  On 6 October 2008, the applicant appeared in person before the ADRB along with a member of the American Legion as his counsel.  On 6 October 2008, the ADRB informed him that the board reviewed his application, military records and all available evidence and determined he was properly and equitably discharged and his request was denied.  He was also informed he had exhausted his appeals with the ADRB and that he could only request a reconsideration if he had new, substantial and relevant evidence to present which was not readily available during that review.

27.  On 12 January 2009, the applicant submitted an application, dated 7 December 2008, through counsel to the ABCMR requesting reconsideration of his previously-denied requests for upgrade of his discharge.  A review of the ABCMR's records revealed his original request was considered by the ABCMR on Docket Number AC07-05909 on 8 April 1998.  As a matter of policy, the applicant was informed that his request for reconsideration was not received within one year of the ABCMR's original decision.  As a result, his request for consideration was returned without further action. 

28.  The applicant provides a 5-page self-authored statement, dated 16 August 2005, wherein he essentially states:

	a.  As a child he was active in the Cub Scouts and the Boy Scouts and he has been employed in various jobs since the age of 9.  He was an average student in high school and was forced to quit college because he was unable to balance the demands of both work and school.  He decided to join the Army and become an MP, but that military occupational specialty (MOS) was not available at the time.  The recruiter told him there would be a waiting period of approximately 6 months for openings in that specific MOS.  He told the recruiter he would have to think about it and the recruiter did not pressure him to make a decision.

	b.  He pursued other employment opportunities for the next few years and was advised that his best chance for securing employment as a police officer was to either work for 3-5 years as a seasonal police officer or to gain military experience.  He had a desire to serve his country in the military as his uncle had, so he visited a recruiting office and was informed once again that there were no vacancies available for the MP MOS at the time and it would probably be close to a year before any were available.

	c.  The recruiter suggested that if he enlisted as an infantryman and proved himself during basic training, he would be able to change his MOS.  He scored well on his Army entrance examination and was told he qualified for any MOS in the Army, but he chose infantry based upon what the recruiter told him about switching MOSs.  While attending basic training he learned that this was not true, but did not let it discourage him.  He strove to excel at every task and motivated others to do the same.  During the last week of training, he tripped and fractured his tailbone and reinjured his back.

	d.  When he arrived at Fort Drum his unit was on deployment to West Point, NY, and he was still on a physical limitations profile due to his fractured tailbone and lower back injury.  He immediately went to his chain of command to inform them of his desire to be an MP and the difficulties he had with his recruiter.  They all told him to "suck it up" and informed him that he would remain there for the next 4 years.  He was also advised that he would regret it if he created any trouble.  He then sought advice from the battalion chaplain, who advised him to write a letters to his senator and Congressional representative to see if they could investigate the possibility of switching his MOS.

	e.  He contends that once his unit commander found out about the investigation, he was called into the commander's office and shown a red folder containing a Senatorial Investigation and the commander informed him that he was going to make the remaining 3.5 years of his service a living hell.  This is the point at which everything began:  details, every extra duty imaginable, cleaning floors/latrines/the laundry room, mopping and waxing floors, shoveling snow, guard duty, 24 hour brigade and battalion Charge of Quarters duties, 2 months of being illegally confined to the barracks, always being the Soldier randomly selected for drug testing, etcetera.  He tried to perform his duties to the best of his abilities while consistently being on profile for his lower back.  The doctors informed him that once the muscles were injured they were more likely to be reinjured.  He attests that he was never given sufficient time to heal.

	f.  As a testament to his integrity, he contends that when an investigation was conducted by the CID to determine who had stolen a pistol from the unit arms room, he was the only one to come forward and identify the thief.  He contends this angered his company commander because he had offered amnesty to the offender for returning the weapon, which was not really within his authority.

	g.  He contends his chain of command never issued him nonjudicial punishment under the provisions of Article 15 of the UCMJ, they just decided to court-martial him and make an example of him because he was 24 years of age.  During his summary court-martial proceedings he was offered an administrative discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations).  His legal defense counsel advised him that he was winning his court-martial case because he had an answer for everything they were trying to convict him for and the prosecution did not have proof of his alleged misconduct.

	h.  His legal counsel informed him that if he accepted the chapter 10 discharge he would be out of the Army within 72 hours, but his service may be characterized as under other than honorable conditions.  Legal counsel also informed him that he could apply for an upgrade after a year.  The contends that this was not the option he wanted to take, but if he did not, he would have three more years of hell from his chain of command, particularly the company commander.  So, he took the Chapter 10 discharge and believed that he could apply for and receive an upgrade at a later date.

	i.  He adds that during his stay at Fort Drum, he met and became engaged to a Canadian woman.  After awhile he discovered she had an eating disorder which affected her most when he was away.  When he was on deployment, and pay phones were available, he spent several hours a day and hundreds of dollars to keep in touch with her.  They loved each other and hated being separated.  Following his discharge, he moved to Canada to be with his fiancee and commuted back and forth across the border to a job in New York.  However, they only stayed together for a few months because of the stress that had began from the 2 months of illegal confinement to the barracks which prevented him from seeing her.

	j.  He then moved back to Maryland where he worked a variety of jobs and eventually started his own business which did well until the devastation of the attacks on 11 September 2001.  When everyone stopped travelling and spending their excess money, he lost quite a bit of money and had to claim bankruptcy.  This would be the worst time of his life because in a 1 year period, his father died, he lost his business, he lost his fiancee, he had to declare bankruptcy, and he was assaulted by two guys and had to be hospitalized.  At this point, he decided to turn his life around and pursue his dream.  Since then he has obtained and excelled in several jobs with increasing levels of responsibility.

	k.  He continues that he is trying to reenlist in the Reserve to further serve his country.  For several years he has been trying to fulfill his dream of becoming a police officer and has applied to every agency that does not require an honorable discharge.  He has been rejected in the application step of the process by every agency or been placed very low on the eligibility list because of his less than honorable discharge.  He attests that he hasn't even been given a chance for them to get to know what kind of man he is.  He opines that most departments don't understand what this discharge entails and the interviewers tell him that they have never seen this type of discharge.

	l.  He contends that he has several references from current law enforcement officers and longtime friends, an excellent grade point average from college, excellent work references, a concealed weapons permit, scored 91 out of a possible 100 on the Criminal Justice Basic Abilities Test, passed every Physical Abilities Test given, and has a clean criminal and driving record.  He concludes his discharge does not in any way reflect the way that he has lived his life.

29.  He provides six character reference letters wherein each of the authors express favorable comments about his work ethic, reliability, dedication, courteousness, and friendship.

30.  He also provides documents depicting his academic and professional achievements since his discharge from the service in the form of:  college transcripts; a letter showing he made The Dean's List at his college for Fall semester 1997; a letter showing he made The National Dean's List for 1997-1998; a Senatorial Scholarship Certificate, dated 30 December 1997; and three certificates of recognition from the Kmart corporation.

31.  Counsel provides a petition for reconsideration of the ADRB's 6 October 2008 decision to deny the applicant's request for an upgrade of his discharge.  This petition consists of a 5-page statement addressing the following topics:  jurisdiction; statement of the case; summary of facts, evidence, and procedure; and theory of law and argument.  In essence, they are summarized as follows:

	a.  Jurisdiction:  Counsel contends the applicant meets the statutory requirements for consideration of his case by the ABCMR.

	b.  Statement of the case:  Counsel provides a brief synopsis of the applicant's service and includes the fact that he was awarded or authorized to wear the National Defense Service Medal, Army Service Ribbon, Expert Marksmanship Qualification Badge with Rifle Bar and Grenade Bar.

	c.  Summary of facts, evidence, and procedure:  Counsel provides a synopsis of the applicant's life essentially as depicted in item 27 of this Record of Proceedings.  Counsel contends:

		(1)  The applicant determined the best way for him to achieve his goal of becoming a civilian police officer was to join the military and get an MOS doing police work to gain experience.

		(2)  He enlisted during the time of the Bosnian war and served honorably for just over 1 year.  He scored well on his entrance examination and excelled during basic training.

		(3)  The tailbone injury he sustained during initial entry training would later haunt him.

		(4)  He became frustrated when his efforts to reclassify to an MP MOS were thwarted and sought relief from his Congressman.  His immediate chain of command was unhappy with this action and promised retribution.  The situation escalated when he spoke out against them as a witness at a military court-martial; and he would later be haunted by this act.

		(5)  He was inhibited from going to and remaining at his place of duty due to the medication and pain from the aforementioned injuries.  He was still on profile from the aforementioned injuries and although his immediate chain of command was aware of his injuries and ongoing treatment, they offered him no assistance.

		(6)  He consumed two bottles of pills; the military charged him with an attempt of getting out of an assigned duty instead of treating him for psychological conditions, such as depression.  Further, the basis for his criminal charges that led to his discharge were associated with the physical injuries that occurred while he was in the course of duty and unassisted by his chain of command.

		(7)  He continued with his life and held steady employment since his discharge.  Further, he has remained out of trouble with the law.  He would like to join the reserves but his RE code prevents him from doing so.

	d.  Theory of law and argument:

		(1)  Propriety/Undue Command Influence:  Counsel contends it is a matter of propriety that the applicant's records be recharacterized.  First, the military failed to acknowledge and accommodate the injuries he was suffering from when these charges were committed.  Further, the military failed to realize the possible undue command influence inflicted upon the applicant when the same chain of command against whom he spoke at a military court was punishing him for his service-connected injuries.

		(2)  Counsel further contends it is a matter of cavil that the military punished him for suffering from service-connected injuries.  Further, applicant should not have been allowed to be retaliated against by his immediate chain of command.  He was performing his duty when he testified at a trial.  Lastly, it was his Constitutional right to contact his Congressman.  He was punished for an action that he was lawfully entitled to perform - a right he did not relinquish when he joined the military.

	e.  Due process:  Counsel contends as a matter of due process, his discharge status should be upgraded.  He asserts he was not afforded a medical examination prior to his discharge.  He also asserts that had he been given an appropriate medical examination then the aforementioned injuries would have been evaluated and considered during the discharge process.  Further, this may have entitled him to VA benefits.

	f.  Equity:

		(1)  Counsel contends that as a matter of equity, the ABCMR should grant his request for an upgrade of his discharge status from under other than honorable conditions to honorable or in the alternative, general, and change his RE code.

		(2)  Counsel attests the applicant had been charged with three Specifications of Article 86, one Specification of Article 90, one Specification of Article 115, and one Specification of Article 134.  The maximum punishment he faced was a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 6 years and 6 months.

		(3)  Counsel contends the applicant has been out of the military for over 10 years and it is now more than several years past any possible punishment he would have faced while in the military.  Yet, he still lives with the stigma attributed to charges the military deemed not worthy to pursue.  He has more than served his time and it is time for the military to release him from his bonds of shame shackled by an uncaring military.

	g.  Clemency:  He pleads upon the ABCMR to upgrade his discharge as a matter of clemency.  The military never considered his physical and psychological conditions resulting from a service-connected injury.  Further, the military never considered the issues of undue command influence and retaliation for his witness testimony during a military court-martial.  The issue is compounded by the military's denial of his due process of rights in that the military failed to provide him a medical examination prior to discharge.  Granting this clemency request will allow him to excel in his professional career, possibly rejoin the military, and serve and contribute to our country.

	h.  Conclusion:  Counsel contends the applicant has shown by a preponderance of evidence that he is entitled to an upgrade of his discharge.  As a matter of equity, he has suffered enough.  In the alternative, he pleads upon the ABCMR as a matter of clemency.

32.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

33.  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.

34.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

35.  Army Regulation 635-5-1 (SPD Codes), in effect at the time of the applicant's separation, provided the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It stated, in pertinent part, that the SPD code KFS was the appropriate code to assign to Soldiers separated under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by court-martial.  The SPD/RE Code Cross Reference Table at the time indicated that RE code 3 was the proper code to assign members separated with SPD code KFS.

36.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the United States Army Reserve.  Chapter 3 of that regulation prescribes the basic eligibility for prior service applicants for enlistment.  This chapter includes a list of armed forces RE codes, including RA RE codes:

	a.  RE code 1 applies to persons who are considered fully qualified for reentry or continuous service at the time of separation;

	b.  RE code 3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable; and 

	c.  RE code 4 applies to persons separated from their last period of service with a nonwaivable disqualification.

37.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 1-8 contains guidance on the operation of the ABCMR and states, in pertinent part, that members will review all applications that are properly before them to determine the existence of error or injustice, deny applications when the alleged error or injustice is not adequately supported by the evidence, and deny applications when the application is not filed within prescribed time limits and when it is not in the interest of justice to excuse the failure to file in a timely manner.  It stipulates, in pertinent part, that the ABCMR will decide cases on the evidence of record.  It is not an investigative body, and will begin its consideration of each case with the presumption of administrative regularity.  Paragraph 2-15b governs requests for reconsideration.  This provision of the regulation allows an applicant to request reconsideration of an earlier ABCMR decision if the request is received within one year of the ABCMR's original decision and it has not previously been reconsidered.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 

DISCUSSION AND CONCLUSIONS:

1.  The court remanded this case and directed the ABCMR to make a fresh determination respecting the applicant's application as an appeal for relief from the ADRB's 6 October 2008 decision based upon all the evidence before it.  As such, this is a reconsideration of his earlier petitions to the ADRB and the ABCMR for correction of his record by either upgrading his discharge under other than honorable conditions:

	a.  to an honorable discharge, or in the alternative;

	b.  to a general discharge, and changing his RE code to a code that will allow him to possibly reenter the military.

2.  Evidence shows he voluntarily enlisted for an infantry MOS in return for a $6,000 cash enlistment bonus and that he was not offered any other promises or commitments at the time of his enlistment.
3.  Evidence shows he injured his tailbone as the result of falling during basic training.  Evidence also shows he was thoroughly evaluated for this injury during his period of service and it was never diagnosed as an unfitting condition which prevented him from performing the duties of his MOS on a permanent basis.  Evidence also indicates he attempted to harm himself by taking an unknown quantity of Robaxin and Ibuprofen and that he received immediate medical treatment for this isolated incident.

4.  His record reveals that in spite of expressing a strong desire to be voluntarily discharged from the Army and numerous adverse counseling sessions regarding his poor performance, his chain of command opted to give him a chance by choosing not to subject him to nonjudicial punishment under the provisions of Article 15 of the UCMJ on several occasions when it would have been appropriate.  His command was under no obligation to offer him an Article 15 before it could pursue court-martial charges.  Charges were properly preferred against the applicant.

5.  The applicant's and counsel's contentions his discharge should be upgraded as a matter equity, due process, clemency, or that he was unjustly subjected to undue command influence, retaliation, and was punished for his medical condition are unfounded and based solely on the applicant's testimony.  His record is void of any evidence and neither he nor his counsel has provided any independent evidence showing that he:

* requested or was denied reclassification to an MP MOS
* sought assistance with reclassifying to an MP MOS from a Congressman
* was inhibited from going to and remaining at his place of duty due to medication and pain from his injuries
* was diagnosed with a psychological or psychiatric condition
* was denied psychological or psychiatric counseling
* experienced any traumatic event while serving in the Army
* testified as a witness in a court-martial case regarding the loss/theft of a weapon
* rendered a sworn statement in connection with a CID investigation regarding the loss/theft of a weapon

6.  The applicant's and counsel's contentions that he was not afforded due process because he was not afforded a medical examination prior to his discharge is also unfounded and based solely on the applicant's testimony.  Evidence clearly shows he underwent a preseparation medical examination on 14 March 1996, and as a result he was determined to be qualified for separation.

7.  Counsel attests that the maximum punishment the applicant faced was a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 6 years and 6 months.  Counsel contends his discharge should be upgraded as a matter of equity because he has been out of the military for over 10 years and it is now more than several years past any possible punishment he would have faced while in the military.

8.  His record shows he was charged with the commission of numerous offenses punishable under the UCMJ with a punitive discharge and he voluntarily requested discharge under the provisions of chapter 10 of Army Regulation 
635-200 to avoid a trial by court-martial which may have resulted in a conviction.
Furthermore, the ABCMR and ADRB do not upgrade discharges based solely on the passage of time.  

9.  The evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

10.  Based on his record of indiscipline, he is not entitled to an upgrade of his discharge.

11.  The applicant's contention that his RE code should be upgraded was carefully considered and determined to lack merit.

12.  He was appropriately assigned an RE code of 3 based on his narrative reason for separation and his SPD code.  Therefore, there is no basis for granting the applicant's requested relief.

13.  The ABCMR does not correct records solely for the purpose of establishing employment opportunities or eligibility for other programs or benefits.  

14.  The existing evidence of record and the independent evidence provided by the applicant and counsel fail to provide sufficient evidence of a compelling nature that would support a conclusion of error or injustice related to his discharge processing.  The regulatory burden of proof to show error or injustice related to his discharge processing rests with the applicant, not with the members of the Board.  

15.  Notwithstanding the court’s concerns, there is no evidence suggesting the applicant’s discharge processing was improper or inequitable, or that the previous decisions of the ABCMR or ADRB were arbitrary or capricious.  These decisions were clearly supported by the available evidence of record and by the absence of compelling independent evidence provided by the applicant.

16.  While the applicant's efforts to further his education and success in his other employment endeavors are commendable, these accomplishments are not sufficiently meritorious as to warrant an upgrade as a matter of equity.

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:

* ABCMR Docket Number AC97-05909 on 8 April 1998
* ADRB Records Review Docket Number AR20060010487 on 25 July 2007
* ADRB Personal Appearance Docket Number AR20080008636 on 6 October 2008.  



      _______ _   xxx_____   ___
               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)                                         AR20110009499





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110009499



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1