IN THE CASE OF:	  

		BOARD DATE:	    20 December 2012

		DOCKET NUMBER:  AR20120010883 


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 the character of his discharge to honorable.

2.  He states, "the basis of the discharge was due to the appearance of misconduct following a traumatic event in-service, when in fact it should have been attributed to PTSD [post-traumatic stress disorder] as a result of the traumatic event."

3.  He provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* self-authored memorandum to the U.S. Army Human Resources Command
* DA Form 3822-R (Report of Mental Status Evaluation)
* memorandum, Company A, 1st Battalion, 6th Infantry Regiment (Rear), undated, subject:  Election of Rights Under the Provisions of Army Regulation 635-200, "Chapter [sic] 14-12c," Commission of a Serious Offense
* self-authored memorandum, dated 17 July 2006, subject:  Statement for Consideration
* DD Form 2795 (Pre-Deployment Health Assessment)
* DD Form 2796 (Post-Deployment Health Assessment)
* pages from his service medical records



CONSIDERATION OF EVIDENCE:

1.  On 22 July 2003, the applicant enlisted in the Regular Army.  After completing initial entry training, he was awarded military occupational specialty 11B (Infantryman).

2.  His record shows he served in Iraq from 19 December 2003 to 18 May 2004.

3.  On 5 October 2004, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for using cocaine between on or about 10 and 23 August 2004.

4.  On 17 December 2005, he was counseled for violating Article 111, UCMJ, by operating a vehicle while intoxicated.  He was notified he was being recommended for action under the UCMJ.

5.  A general officer memorandum of reprimand, dated 23 March 2006, shows the Assistant Division Commander reprimanded him for operating a motor vehicle while intoxicated on 15 December 2005.  The imposing authority directed filing the reprimand in his Army Military Human Resource Record (formerly known as the Official Military Personnel File).

6.  On 7 February 2006, he was counseled for being absent without leave (AWOL) from 31 January to 3 February 2006.

7.  On 3 March 2006, he accepted NJP for being AWOL from 1 to 3 February 2006 and for driving while intoxicated on 17 December 2005.

8.  On 26 April 2006, he was counseled for making a false official statement and obstructing justice on or about 23 April 2006.

9.  On 17 May 2006, he underwent a medical examination for the purpose of a medical board.  The examining medical provider noted, in part:

* the applicant was under psychiatric care for PTSD, depression, anxiety, and memory loss
* the applicant incurred a fracture of the right tibia and fibula in May 2004

10.  His record is void of documentation showing he was referred to a medical evaluation board (MEB).

11.  On 29 June 2006, he accepted NJP for violating a lawful regulation by operating a vehicle without a valid U.S. Army Europe (USAREUR) license on or about 23 April 2006 and making a false official statement to the Baumholder Military Police with intent to deceive on or about 24 April 2006.

12.  On 11 July 2006, he underwent a command-referred mental status evaluation for separation under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 14.  The examining psychologist noted a diagnosis of PTSD.  The examining psychologist found he was mentally responsible, able to distinguish right from wrong and adhere to the right, and had the mental capacity to understand and participate in administrative proceedings.  He was psychiatrically cleared for any administrative action deemed appropriate by command.

13.  In an undated memorandum, his commander notified the applicant he was initiating action to separate him for commission of a serious offense and advised him of his rights.  His commander listed the reasons for the proposed action as:

* wrongful use of cocaine between 10 and 23 August 2004
* driving a motor vehicle while drunk on 17 December 2005
* being AWOL from 1 to 3 February 2006
* operating a vehicle without a valid USAREUR license on 23 April 2006
* making a false official statement to the Baumholder Military Police on 24 April 2006

14.  On 17 July 2006, he acknowledged receipt of notification of the separation action.

15.  He was advised by counsel regarding his contemplated separation and its effects, the rights available to him, and his right to waive his rights.

16.  After consulting with counsel, he elected to submit statements in his own behalf and he waived representation by counsel.  He acknowledged he could expect to encounter substantial prejudice in civilian life if a general discharge were to be issued to him.

17.  In a self-authored memorandum to the separation authority, dated 17 July 2006, subject:  Statement for Consideration, he requested consideration of several matters when determining the character of his service.  He stated:

* with regard to his wrongful use of cocaine, he went through rehabilitation and had had no issues with drugs since 2004
* he was in the Army Substance Abuse Program when he drove under the influence in December 2005 – the incident was a relapse for which he took full responsibility
* being AWOL from 1 to 3 February 2006 was due to a miscommunication
* on 23 April 2006, he drove without a license because a friend was drunk
* his false statement to the Baumholder Military Police was a mistake for which he took full responsibility
* he was deployed to Iraq from December 2003 to May 2004 during which time he earned the Combat Infantryman Badge
* he completed the Sniper and Javelin Schools and he was a Bradley gunner as an E-2
* he turned 18 while he was in Iraq
* he was diagnosed with PTSD in November 2005 which was caused by traumatic situations he witnessed in Iraq, including multiple friends killed in action and a combat ambush during which his leg was broken
* he received the Purple Heart for his injuries
* as a result of his PTSD and broken leg, he could no longer be an infantryman and was in the process of being medically separated
* he wished to proceed with an MEB or to receive an honorable discharge

18.  In an undated memorandum to the separation authority, his commander recommended his separation with a general discharge.  The memorandum shows, in part, a report of mental status evaluation and medical examination were enclosed with the memorandum and there was no medical or other data meriting consideration in the overall evaluation to separate the applicant or in determining his character of service.

19.  On 26 July 2006, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-200, paragraph 14-12c, and directed the issuance of a general discharge.  On 24 August 2006, he was discharged in accordance with the separation authority's directive.

20.  His DD Form 214 shows he was awarded or authorized the Army Commendation Medal, Army Achievement Medal, National Defense Service Medal, Iraq Campaign Medal, Global War on Terrorism Service Medal, Army Service Ribbon, and Overseas Service Ribbon (2nd Award).

21.  His record is void of documentation showing he was awarded the Purple Heart or Combat Infantryman Badge.

22.  On 24 July 2009, the Army Discharge Review Board informed him his request for a change in the character of and/or reason for his discharge was denied.

23.  On 5 September 2012, the U.S. Army Human Resources Command Awards and Decorations Branch informed him his request for award of the Purple Heart was returned without action due to a lack of required supporting documentation.

24.  He provides, in part:

	a.  a DD Form 2796 certified by a health care provider on 26 March 2004 who noted no reasons for referral for additional medical care;

	b.  a DD Form 2796 certified by a health care provider on 12 July 2004 who noted "mental/social issues resolved while on emergency leave last week."  The provider noted orthopedic referral was indicated for his leg fracture; and

	c.  pages from his service medical records pertaining to his rehabilitation following repair of his leg fracture.  The pages he provided make no reference to PTSD.

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

	b.  Chapter 1 states, in part, that disposition through medical channels takes precedence over administrative separation processing.

		(1)  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/she will refer the Soldier to an MEB.  The administrative separation proceedings will continue, but final action by the separation authority will not be taken pending the results of MEB.

		(2)  If the MEB findings indicate that referral of the case to a physical evaluation board (PEB) is warranted for disability processing, the medical treatment facility commander will furnish copies of the approved MEB proceedings to the Soldier's general court-martial convening authority and unit commander.  The general court-martial convening authority may direct, in writing, that the Soldier be processed through the physical disability system when action under the UCMJ has not been initiated and one of the following has been determined:

		(a)  the Soldier's medical condition is the direct or substantial contributing cause of the conduct that led to the recommendation for administrative elimination or

		(b)  other circumstances of the individual case warrant disability processing instead of further processing for administrative separation.

	c.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for an upgrade of the character of his discharge to honorable.

2.  He states his misconduct was the result of PTSD.  His record confirms he was diagnosed with PTSD during his service; however, his record also shows a mental status evaluation completed in conjunction with his separation processing found he was mentally responsible, able to distinguish right from wrong and adhere to the right, and had the mental capacity to understand and participate in administrative proceedings.  The examining psychologist noted his diagnosis of PTSD and psychiatrically cleared him for any administrative action deemed appropriate by command.  Further, the record shows there was no medical or other data meriting consideration in the overall evaluation to separate him or in determining his character of service.

3.  The evidence shows the applicant was properly and equitably discharged in accordance with the applicable regulations, that all requirements of law and regulation were met, and that his rights were fully protected throughout the separation process.

4.  He received NJP for using cocaine, being AWOL, operating a vehicle without a valid license, and making a false official statement.  He was also reprimanded by a general officer for operating a motor vehicle while intoxicated.  Based on this 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.

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)                                         AR20120010883



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ABCMR Record of Proceedings (cont)                                         AR20120010883



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