BOARD DATE:	  29 January 2013

		DOCKET NUMBER:  AR20120011224 


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) and that the reason for discharge be changed to show he was retired due to medical reasons.  

2.  The applicant's statements and supporting documents are provided by counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant's GD be upgraded to an honorable discharge (HD) and correction of his record to show disability retirement.  

2.  Counsel states the applicant is entitled to a discharge upgrade because his discharge was in error and unjust.  The applicant was discharged after he complained of mental health issues and attempted suicide.  He further states the applicant is entitled to a medical discharge because it would remove the injustice resulting from the Army's failure to provide a medical evaluation board (MEB) and physical evaluation board (PEB) which were warranted based on the applicant's medical history.  

3.  Counsel provides a 14-page statement and the 35 enclosures identified in the Table of Contents provided with the statement in support of the application.  


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 9 March 2004   He was trained in and awarded military occupational specialty (MOS) 13F (Fire Support Specialist) and the highest grade he held on active duty was specialist 
(SPC)/E-4.  

3.  On 27 August 2007, the applicant was hospitalized and underwent a comprehensive mental status evaluation.  The examining physician diagnosed the applicant with Axis I - Dysthymia, Opioid Abuse, Malingering; Axis II - Personality Disorder; and Axis III - None.  

4.  The examining physician for the mental status evaluation further determined the applicant was mentally sound and able to appreciate any wrongfulness in his conduct and to confirm his conduct to the requirements of law.  The physician further found the applicant had the mental capacity to understand and participate in board or other administrative proceedings.  The examining physician recommended the applicant be returned to duty and indicated the applicant would receive immediate medical follow up.  The applicant was cleared for all administrative actions.  

5.  On 27 August 2007, the Chief, Inpatient Behavioral Health Ward, Behavioral Health Clinic, Winn Army Community Hospital, Fort Stewart, Georgia issued a memorandum, Subject:  Psychiatric Clearance for Deployment, in which he indicated the applicant was fit for deployment.  

6.  The record contains a DD Form 2808 (Report of Medical Examination) which notes the applicant suffered from depression/anxiety and that he took medication for these conditions.  The examining physician assigned the applicant a 111111 physical profile and determined the applicant was medially qualified for retention/separation.  
7.  The record is void of medical treatment records indicating the applicant suffered from a disabling physical or mental condition that warranted separation processing through medical channels at the time of his discharge processing.  

8.  On 15 January 2008, the unit commander notified the applicant of his intent to initiate action to separate him under the provisions of chapter 14, Army Regulation 635-200, by reason of commission of a serious offense.  The unit commander cited the reason for this recommendation was the applicant’s malingering after being counseled by members of the chain of command on malingering and refusal to deploy.  The unit commander informed the applicant he was recommending the issuance of a GD.  

9.  On 15 January 2008, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, its effects, and of the rights available to him in connection with the action.  The applicant acknowledged receipt of the separation notification and confirmed he had been provided all documents contained in the separation packet.  

10.  On 26 January 2008, the separation authority approved the applicant's request for discharge under the provisions of chapter 14, Army Regulation 
635-200, and directed the applicant receive a GD.  On 14 February 2008, the applicant was discharged accordingly.

11.  On 12 June 2009, the Army Discharge Review Board, after carefully examining the entire military record and the evidence submitted by the applicant, determined his discharge was proper and equitable and voted unanimously to deny the applicant's request for an upgrade of his discharge or to change the narrative reason for separation.  

12.  Counsel provides VA medical treatment records and a rating decision that show the applicant was assigned a 30 percent disability rating for post-traumatic stress disorder, effective 13 August 2010.  It gives no indication this condition was active and rendered the applicant unfit for service at the time of his discharge in 2008.  

13.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the policy for the administrative separation of enlisted Soldiers.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  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.
14.  Army Regulation 635-200, paragraph 3-7a, states 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.

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army 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.  Paragraph 4-3 contains guidance on enlisted Soldiers subject to administrative separation.  It states an enlisted Soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions.  If the case comes within the limitations above, the commander exercising general court-martial jurisdiction over the Soldier may abate the administrative separation if he/she 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 alternate administrative separation. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to upgrade his discharge and to correct the record to show he was retired by reason of disability has been carefully considered.  However, there is insufficient evidence to support these claims.  

2.  The evidence of record 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.

3.  The evidence of record confirms the applicant was separated with a general discharge by reason of misconduct-commission of a serious offense for malingering.  It further shows the malingering finding was made during a comprehensive mental status evaluation conducted by competent medical authority.  



4.  Further, the record is void of any medical treatment records that indicate the applicant was suffering from a disabling physical or mental condition that would have warranted processing through medical channels (MEB/PEB) at the time of his discharge processing.  The VA medical findings and disability rating assigned effective some 2 years after the applicant's discharge do not call into question the validity of the medical findings made during his discharge processing.  

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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)                                         AR20120011224



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ABCMR Record of Proceedings (cont)                                         AR20120011224



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