IN THE CASE OF:	  

		BOARD DATE:	  15 August 2013

		DOCKET NUMBER:  AR20120021578 


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 the following:

* reinstatement in the Army
* back pay and promotions missed due to the injustice 
* reinstatement of her Montgomery GI Bill
* if reinstated, allowed to buy leave back that she was forced to sell
* compensation of $566.71 for monies paid out of pocket for tuition
* removal of Article 15 and reinstatement of her rank 

2.  She states she should not have been discharged at all, much less for an adjustment disorder.  She explains she became suicidal during deployment to Afghanistan after a miscarriage and sought the advice of "Combat Stress" in late September 2011.  She was sent to see the post psychiatrist who prescribed her Trazadone.  She maintains the medication had side effects of causing her to have suicidal ideations which she did not have prior to taking the medication.  The medication was later stolen and she began to have suicidal ideations.  

   a.  She explains that at the time she was prescribed Trazadone, she was also taking Flexeril.  She offers the warning for Trazodone states that the two medications should not be taken together.  She opines this error is proof that the doctor was not paying attention to details, who was the same doctor who signed her separation for adjustment disorder.  She continues by citing errors in her mental health examination and states she did not see evidence of any "long standing" issues.  Additionally, she offers that many Soldiers have issues throughout deployment and they are not discharged.
   b.  She states she had more than 6 years of service and was entitled to a separation board, but did not have "effective assistance of counsel throughout her separation process."  She maintains she was forced by her counsel and platoon sergeant to forfeit her right to a separation board.  They coerced her into signing documents that she argued were improper and she was threatened with another Article 15 if she refused to sign those documents.  She argues that the Army had no authority to process her paperwork based on the type of discharge and the location of where she was discharged.  The Army acted without authority and she should be reinstated with all back pay, benefits, and privileges, as well as promotions that would have been granted had she not been discharged.     

	c.  She also maintains she received an Article 15 that was improper and defective because the charge of misconduct was too vague and broad.  She states the specification was faulty and must allege a lawful command.  She states the command was arbitrary in that there were no definitions for "strictly professional issues" and "refrain from behaving in any unprofessional way."  She states ordering a Soldier to be professional is too vague and too broad to have any meaning.  She adds the way the specification for the Article 15 is drafted, she was denied due process.

3.  She provides the following:

* Self-authored statement
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 3822 (Report of Mental Status Evaluation), dated 24 December 2011
* Enlistment/Reenlistment Document
* Memorandum, Subject:  Separation Under Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), Chapter 5, Paragraph 5-17, Other Designated Physical or Mental Conditions, dated 13 January 2002
* Enlisted Record Brief (ERB)
* Internet Articles
* Leave and Earnings Statement
* Payment History for (Applicant)
* DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)
* Congressional Correspondence





CONSIDERATION OF EVIDENCE:

1.  On 22 November 2005, the applicant enlisted in the Illinois Army National Guard (IARNG).  On 2 December 2009, she was honorably discharged from the IARNG and credited with 4 years and 11 days net service this period.  On
3 December 2009, she enlisted in the Regular Army.  She served in Afghanistan from 13 June 2011 to 10 February 2012.

2.  On 4 August 2011, nonjudicial punishment was imposed against the applicant under the provisions of Article 15, UCMJ, for disobeying a lawful order from a superior commissioned officer on 26 July 2011 to "limit her contact with a certain specialist to strictly professional issues," and to refrain from behaving "in any unprofessional way towards her, either in person or without her knowledge."  Her punishment consisted of reduction from E-4 to E-3 and a forfeiture of $455.00 pay per month for 1 month (suspended to be automatically remitted if not vacated before 31 January 2012.

   a.  Records show she was afforded the opportunity to consult with counsel and initialed "I do not demand trial by court-martial."  She also initialed the block indicating that she requested a person to speak in her behalf and matters in her defense would be presented in person.  The commander signed the Article 15 verifying that he "considered all matters presented" and found her guilty of all specifications.  She signed the Article 15 confirming that she requested to appeal and submit additional matters.  However, no "additional evidence" was provided with the form.
   
   b.  The DA Form 2627 indicated there were 6 enclosures as "Allied Documents and/or Comments":  2 DA Forms 4856 (Developmental Counseling Form) dated 1 August 2011 and 17 July 2011; 4 DA Forms 2823 (Sworn Statement); a DA Form 268 (Suspension of Favorable Action); an ERB; and a legal request.  However, her record is void of these documents as well as the 
DA Form 2627.

   c.  On 6 August 2011, after considering all matters presented in the appeal, the battalion commander denied her request.  

3.  On 24 December 2011, she underwent a mental status evaluation in which the behavioral health provider diagnosed her with an "adjustment disorder with depressed mood."  She was cleared for administration separation under the provisions of Army Regulation 635-200, paragraph 5-17.  The provider stated that the applicant was at an elevated risk for harm to herself and should be monitored closely during administrative separation.  He further stated:
   a.  The applicant was command referred to the clinic at Mazar-E Sharif, Afghanistan for an evaluation of her suitability for a chapter 5-17, administrative separation.  She agreed to an interview after the limits of non-confidentiality for a command-directed mental health evaluation were reviewed.  The sources of information included the applicant's report, review of her electronic medical record, and a discussion with her command.  The behavioral health provider stated that the applicant had two emergent referrals to behavioral health in the last week related to suicidal ideation, most recently culminating in a laceration to her right wrist.

   b.  The behavioral health provider found that she met the retention requirements of chapter 3, Army Regulation 40-501 (Standards of Medical Fitness).  She had no service-limiting or disqualifying psychiatric diagnoses that would warrant a Medical Evaluation Board (MEB).  He said the applicant was mentally responsible for her behavior, could distinguish right from wrong, and possessed sufficient mental capacity to participate in administrative proceedings. 

4.  The applicant's record is void of the specific facts and circumstances surrounding her discharge.  However, her record contains a memorandum from the battalion commander, dated 31 January 2012, to the Commander, III Corps and Fort Hood, Fort Hood, TX, recommending approval of her proposed separation under the provisions of Army Regulation 635-200, paragraph 5-17.  

5.  Her DD Form 214 shows she was discharged on 29 February 2012 under the provisions of Army Regulation 635-200, paragraph 5-17, for a condition, not a disability.  She was credited with completing 2 years, 2 months, and 28 days of active service during the period under review.

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

   a.  Paragraph 2-2 states when a Soldier has 6 or more years of total active and Reserve service on the date of initiation of recommendation for separation, he/she is entitled to a hearing before an administrative separation board.  This includes creditable service in any U.S. military component.

   b.  When a Soldier waives his/her right to a hearing before an administrative board and the separation authority approves the waiver, the case will be processed without convening a board.  However, the separation authority will be the same as if the board was held.

   c.  A Soldier may wish to waive his/her right to a hearing before an administrative separation board contingent upon receiving a characterization of service or description of separation more favorable than the least favorable characterization authorized for the separation reason set forth in the notice of separation action.

* Soldiers wishing to submit a conditional waiver will submit a completed Request for Conditional Waiver
* Commanders will ensure that a Soldier is not coerced into waiving his/her right to a hearing before an administrative separation board

   d.  Paragraph 5-17 states a commander may approve separations under this paragraph on the basis of other physical or mental conditions not amounting to disability under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that potentially interfere with assignment to or performance of duty.

7.  Army Regulation 27-10 (Military Justice) establishes the policies and procedures for administration of military justice.  Paragraph 3-2 states the use of nonjudicial punishment is proper in all cases involving minor offenses in which non-punitive measures are considered inadequate or inappropriate.  Nonjudicial punishment may be imposed to preserve a Soldier's record of service from unnecessary stigma by record of court-martial conviction.  The imposing commander will ensure that the Soldier is notified of the commander's intention to dispose of the matter under the provisions of Article 15, UCMJ.  The Soldier will be advised that he has a right to demand trial.  The demand for trial may be made at any time prior to imposition of punishment.  The Soldier will be informed of his right to fully present his case in the presence of the imposing commander, to call witnesses, present evidence, be accompanied by a spokesperson, request an open hearing, and/or examine available evidence.  Punishment will not be imposed unless the commander is convinced beyond a reasonable doubt that the Soldier committed the offense(s).

8.  Army Regulation 600-37 (Unfavorable Information) establishes policies and procedures whereby a person may seek removal of unfavorable information from official personnel files.  The regulation also ensures that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in the individual’s Army Military Human Resource Record (AMHRR).  The regulation states that once an official document has been properly filed in the AMHRR, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the AMHRR. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant argues that she did not have "effective assistance of counsel" and she was forced by her counsel and platoon sergeant to forfeit her right to a separation board.  Although her separation packet is not contained in her available record, there is no evidence and she has not provided any to show she voiced her concerns to someone in her chain of command or sought assistance in securing other representation.  Additionally, it is noted that if she provided a statement on her behalf concerning the discharge action when given the option, she failed to provide that statement to the Board.  Therefore, in the absence of documentation to support her contention, the presumption of regularity must be applied. 

2.  The evidence of record shows on 24 December 2011, she underwent a mental status evaluation that diagnosed her with an "adjustment disorder with depressed mood."  She was cleared for administration separation under the provisions of Army Regulation 635-200, paragraph 5-17.

3.  No medical evidence has been presented by the applicant to demonstrate an injustice in the medical treatment she received in service or any evidence to show that she was denied due process.  Consequently, there is no basis for granting the applicant's request to be reinstated into the Army.  Likewise, there is no basis to pay her back pay, promote her, reinstate her Montgomery GI Bill, buy her leave back, or to compensate her $566.71 for monies paid out of pocket for tuition.

4.  She also requests removal of an Article 15 and reinstatement of her rank.  She maintains the Article 15 was improper and defective because the charge of misconduct was too vague and broad.  The evidence of record shows she received an Article 15 for disobeying a lawful order.  Prior to accepting the Article 15, she was afforded the opportunity to consult with counsel and the right to demand trial by court-martial.  The record also shows she elected a person to speak on her behalf and to present matters in her defense in person.  Therefore, she had an opportunity to present matters in her defense.  The issue of the vagueness of the charge is one that she either did or should have addressed before the commander.

5.  The evidence further shows there were two counseling statements and four sworn statements listed as allied documents to the Article 15; however, these documents were not contained in the applicant's AMHRR and were not provided to the Board for review.  The commander signed the Article 15 indicating that he had considered all matters presented prior to making his final decision and found her guilty of all specifications.  She appealed the Article 15 to the higher authority and after a complete review, her request was denied.  

6.  The Article 15 proceedings were conducted in accordance with law and regulation and the punishment imposed was not unjust or disproportionate to the offenses committed.  There is no evidence and the applicant has not provided any to show she was denied due process.

7.  In view of the evidence in this case, there is no basis for granting her 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)                                         AR20120021578





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ABCMR Record of Proceedings (cont)                                         AR20120021578



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