IN THE CASE OF:	  

		BOARD DATE:  5 February 2013

		DOCKET NUMBER:  AR20120009563 


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, an upgrade of her discharge under honorable conditions to an honorable discharge or correction of her records to show she was medically discharged.

2.  The applicant states:

	a.  She was discharged for a pattern of misconduct and received a general discharge under honorable conditions.  At the time of her discharge and for months prior, she was under psychiatric care.  She received counseling once per week as well as medication.  Her physician had not given her a diagnosis of post-traumatic stress syndrome (PTSD), but she had signs of PTSD with depression.  When her chapter process began, she was evaluated by a physician for whom she had never been a patient.  After spending 20 minutes with her, the physician signed documentation stating she had normal mental health.  She requested to be reevaluated by an impartial psychiatrist.  Her request was denied and she was processed out of the military in 2 weeks.

	b.  Since her discharge, she has visited Department of Veterans Affairs (VA) hospitals related to her mental behavior.  In 2010, she was diagnosed with PTSD rated at 50-percent disabling which was directly related to her military service in 2004.  She is currently undergoing treatment for the same recurring symptoms she had in 2005.

	c.  She feels her unit was not concerned with the care she was receiving, they just wanted to discharge her and not deal with it.  When she met with legal counsel, she was advised that it would be in her best interest to accept the discharge because she could receive a lesser discharge if she appealed.  She accepted because she was concerned she would not receive the benefits she has contributed to and would be entitled to.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* page 2 of a VA Rating Decision
* five Standard Forms 600 (Chronological Record of Medical Care)
* Army Achievement Medal Certificate
* Army Review Boards Agency memorandum

CONSIDERATION OF EVIDENCE:

1.  The applicant's record show she enlisted in the Regular Army on 23 July 2003 and she held military occupational specialty (MOS) 42A (Human Resources Specialist).  She served in Iraq from 19 April 2004 to 24 April 2005.  She was advanced to the rank of specialist on 1 February 2005.

2.  She was assigned to the 19th Engineer Battalion, Fort Knox, KY, effective 1 November 2005.  Between 27 October 2005 and 9 March 2006, she was frequently counseled by various members of her chain of command for failing to follow instructions, not being in the proper uniform, disobeying a 24-hour quarters slip, failing to inform her squad leader of her whereabouts, being late to duty, and repeatedly failing to report to her appointed place of duty at the prescribed time.

3.  On 9 March 2006, she received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to go to her appointed place of duty at the prescribed time on four separate occasions from 3 to 7 March 2006.

4.  On 24 March 2006, she received NJP under the provisions of Article 15, UCMJ, for failing to go to her appointed place of duty at the prescribed time on five separate occasions from 11 to 14 March 2006.  Her punishment included, in part, reduction to private first class (PFC)/E-3.  The reduction to PFC was suspended, to be automatically remitted if not vacated before 22 June 2006.

5.  On 24 April 2006, her reduction suspension was vacated for failing to report to her appointed place of duty at the prescribed time on 12 April 2006 and she was reduced to PFC.

6.  A DA Form 4856 (Developmental Counseling Form), dated 24 August 2006, shows she was counseled by her squad leader for failing to report to her appointed place of duty at the prescribed time.  Her squad leader stated she would be required to report to the operations office at 0530 in her physical training (PT) uniform daily until the company deployed to Fort Bragg, NC, because she continued to miss the PT formation at 0630 and work call at 0900.

7.  In response, the applicant stated she disagreed with the plan of action.  She already had an issue with being up at 0600 daily, 0530 would only make it worse, and she would not comply with the plan of action.

8.  On 29 August 2006, she was counseled by her platoon sergeant for failing to be at her appointed place of duty at the prescribed time on five separate occasions from 25 to 29 August 2006.  He stated she was to report to him in the operations office at 0545 on 30 August 2006 and she would move into the barracks.

9.  In response, the applicant disagreed with the counseling and stated, "I think that UCMJ would be most appropriate.  The Army should not have to tolerate a Soldier's behavior such as mine."

10.  On 16 October 2006, the applicant was notified by her immediate commander of his intent to process her for separation under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12b, for misconduct – pattern of misconduct.  The commander stated his reason was because the applicant failed to be at her appointed place of duty on over 20 different occasions between 27 October 2005 and 29 August 2006.  He further stated he was recommending issuance of a general discharge.  On 16 October 2006, the applicant acknowledged receipt of the proposed separation action.

11.  On 26 October 2006, the applicant underwent a mental status evaluation.  The examining official noted the applicant's behavior was normal, she was fully alert and oriented, her thinking process was clear, her thought content was normal, and her memory was good.  The examining official opined that she had the mental capacity to understand and participate in the proceedings and was mentally responsible.  The applicant was diagnosed with depression with anxiety.  The examining official found there was no evidence of mental defect, emotional illness, or psychiatric disorder of sufficient severity to warrant disposition through medical channels.  She was psychiatrically cleared for any administrative action deemed appropriate by the command.

12.  On 3 November 2006, she consulted with legal counsel and she was advised of the basis for the contemplated separation action, the effect on future enlistment in the Army, and the possible effects of a general discharge.  She was advised of the procedures and rights available to her.  She acknowledged she understood she could expect to encounter prejudice in civilian life if she were issued a general discharge.  She declined to submit a statement on her own behalf.

13.  Her immediate commander subsequently recommended her separation under the provisions of Army Regulation 635-200, paragraph14-12b, for a pattern of misconduct with a general discharge under honorable conditions.

14.  On 7 December 2006, she received NJP under the provisions of Article 15, UCMJ, for being absent without leave from 23 to 24 October 2006, and failing to go to her appointed place of duty at the prescribed time on six separate occasions from 19 October to 21 November 2006.  Her punishment included, in part, reduction to private (PVT)/E-1.

15.  On 14 December 2006, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph14-12b, for a pattern of misconduct and directed the issuance of a general discharge under honorable conditions.  On 22 December 2006, she was discharged accordingly.

16.  Her DD Form 214 shows she was discharged in the rank of PVT under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of a pattern of misconduct, with an under honorable conditions characterization of service.

17.  On 13 August 2010, the Army Discharge Review Board determined the applicant had been properly and equitably discharged and denied her request for an upgrade of her discharge.

18.  The applicant provides:

	a.  A Standard Form 600, dated 15 January 2004, shows she was seen on that date for a complaint of an inability to fall asleep, depression, and pelvic pain.  She was diagnosed with depressed mood, insomnia, and chronic pelvic pain.  She was prescribed medication for her depressed mood and the examining physician recommended she seek counseling.

	b.  A Standard Form 600, dated 21 December 2005, shows she was seen on that date at the Nutrition Clinic, Ireland Army Community Hospital, Fort Knox, KY, for nutritional counseling.  She had been referred by a mental health counselor as she had a problem eating in the dining facility because she believed it was unsanitary.

	c.  Page 2 of a VA Rating Decision, undated, shows she was granted service connection for chronic PTSD with depressive disorder (not other specified) and panic disorder without agoraphobia rated at 50-percent disabling effective 30 November 2010.

19.  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 included minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities, and desertion or absence without leave.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such were merited by the Soldier's overall record.

20.  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.

21.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states medical evaluation boards (MEB)/physical evaluation boards (PEB) 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 qualification for retention based on the criteria in Army Regulation
40-501 (Standards of Medical Fitness), chapter 3.

22.  Paragraph 3-1 of Army Regulation 635-40 provides that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before that service member can be medically separated or retired.

23.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  The VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The VA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant was counseled on numerous occasions for failing to follow instructions, not being in the proper uniform, disobeying a 24-hour quarters slip, failing to inform her squad leader of her whereabouts, being late to duty, and repeatedly failing to report to her appointed place of duty at the prescribed time.  In addition, she received NJP on two occasions for repeatedly failing to report to her appointed place of duty at the prescribed time.  Accordingly, her immediate commander initiated separation action against her for a pattern of misconduct.

2.  Her separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized her rights.  It appears rather that not caring, her command was exceptionally tolerant of her misconduct as she was counseled for repeatedly failing to report to her appointed place on numerous occasions for over a year prior to separation action being initiated against her.  The applicant’s conduct still did not improve and she stated on at least one occasion that she would not comply with corrective action and the Army should not tolerate behavior such as hers.  After separation action was initiated, she received NJP on a third occasion for repeatedly failing to report to her appointed place of duty at the prescribed time.

3.  The evidence of record does not show and that applicant has not provided any evidence that shows she was diagnosed with or suffered from any medical/mental condition while serving on active duty that limited her ability to perform in her grade/MOS or that would have warranted referral to an MEB/PEB.  Although she may have been diagnosed with and treated for depression while she was serving on active duty, she was found to be mentally responsible and to have no disorder that warranted disposition through medical channels.  The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  Therefore, she is not entitled to a medical discharge.

4.  A disability decision rendered by another agency does not establish error on the part of the Army.  Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining the medical condition of a Soldier at the time of their discharge.  The VA may award ratings because of a service-connected disability that affects the individual's civilian employability.

5.  Based on her overall record, it is clear the applicant's service did not meet the standards of acceptable conduct for Army personnel that would warrant an upgrade of her discharge.  Therefore, she is not entitled to an honorable 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 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)                                         AR20120009563



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ABCMR Record of Proceedings (cont)                                         AR20120009563



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