IN THE CASE OF:

		BOARD DATE:  7 November 2013

		DOCKET NUMBER:  AR20130004815


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 narrative reason for separation listed on his 
DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed. 

2.  The applicant states:

	a.  In early 2004 after returning from a deployment to Iraq he discovered, while on leave, that his mother was suffering from serious depression, mood disorders, adjustment disorder, and dependent personality disorder.  He immediately applied for a compassionate reassignment to Fort Irwin, California to be in a better position to care for her while fulfilling his military obligations.

	b.  Unfortunately, before the reassignment was granted, his mother's condition deteriorated to a point that she required immediate assistance.  She was homeless and in need of medical treatment.

	c.  He went to assist his mother from 18 June to 20 July 2004, at which time he was able to stabilize her condition by getting her medical treatment and housing.  He returned to his unit to complete his military obligations and pursue his reassignment.  

	d.  A few months later, he was informed that his mother's condition took a turn for the worse.  With no other capable family members near her, he again left to render aid to his mother.  He was gone from 9 November 2004 until he was discharged on 26 May 2005.  He then cared for his mother until her death on 
24 October 2006.
	e.  He was an exceptional Soldier up to that point and had every intention to continue to serve honorably.  He had reenlisted to attend Ranger School.  When he was informed of the situation he made every effort to use the appropriate military channels, but his mother needed immediate assistance.  He was the only person able to care for her and to ensure she received the proper medical care she required.

3.  The applicant provides:

* his reissued DD Form 214
* his DA From 3739 (Application for Compassionate Actions)
* 10 May 2004 letter from the Battalion Chaplain
* 10 May 2004 letter from the Medical Director, Horizons Mental Health Center
* his mother's death certificate
* 22 September 2004 memorandum from staff sergeant (SSG) Andres L____
* his DA From 1059 (Service School Academic Evaluation Report)
* his Verification of Military Experience and Training

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 4 February 2002.  He completed training was awarded military occupational specialty 11B (Infantryman).  He served in Kuwait/Iraq from 28 February 2003 to 11 January 2004.

3.  On 26 August 2004, his immediate commander notified him of his intent to initiate separation action against him for misconduct – commission of a serious offense.  He was absent without leave (AWOL) for more than 30 days.  
4.  On 27 August 2004, the applicant acknowledged receipt of the separation notification action and consulted with counsel.  He requested consideration of his case by an administrative separation board and representation by military counsel.  He did not submit a statement on his own behalf.

5.  On 26 August 2004, his immediate commander initiated the separation action. The commander stated the applicant has been AWOL for more than 30 days.  He further stated the applicant had been counseled, and through subsequent behavior, had demonstrated a lack of acceptance of rehabilitative measures.  
The recommendation indicates the applicant had accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice on 17 August 2004, for being AWOL.  The commander recommended he receive a general discharge. 

6.  On 14 September 2004, the battalion commander concurred with the recommendation for separation with a general discharge.

7.  The brigade commander recommended approval of the separation action with an under other than honorable conditions (UOTHC) discharge.

8.  On 19 April 2005, an administrative separation board was conducted.  The applicant was AWOL, but represented by counsel.  The board carefully considered the evidence and found that the evidence supported the allegation that the applicant was AWOL from 18 June 2004 until 21 July 2004, and that he should be separated with a UOTHC discharge.

9.  The separation authority approved the separation action and directed the applicant be discharged under the provisions of Army Regulation 635-200, chapter 14-12c, for misconduct, commission of a serious offense, and directed the applicant's service be characterized as UOTHC.  He was discharged accordingly on 26 May 2005.

10.  On 13 January 2010, the Army Discharge Review Board (ADRB) upgraded the characterization of his service to honorable.  The ADRB analyst recommended the applicant's characterization of service be upgraded to honorable after full consideration of his faithful and honorable service, as well as his record of misconduct.  The analyst indicated the evidence supported a conclusion that the applicant's characterization of service was too harsh, and as a result was inequitable.  While the applicant's misconduct was not condoned, the overall length and quality of his service, a combat tour in Iraq, and the post-service accomplishments mitigated the discrediting entries on the service record. The analyst recommended the characterization of service be upgraded to honorable; however, the reason for the discharge was fully supported by the record and, therefore, remains proper and equitable.

11.  The applicant's revised DD Form 214 shows he was discharged on 26 May 2005, with service characterized as honorable.   The separation authority is shown as "AR 635-200,PARA 14-12C."  The narrative reason for the separation is shown as Misconduct.  He had completed 2 years, 8 months, and 1 day of net active service this period.  Time lost is shown as:  18 June to 20 July 2004 and 
9 November 2004 to 26 May 2005.

12.  The applicant provided a:

	a.  10 May 2004 letter in which the Battalion Chaplain wrote in support of the applicant's request for a compassionate reassignment to be closer to his mother. The Chaplain stated that in recent months the applicant's mother had attempted suicide by overdosing on medication and she had become homeless and lost all forms of medical coverage.  The applicant was working on taking her on as one of his dependents.   His brother and sister were not in a financial position to provide adequate care for her.  A reassignment to Fort Irwin, California, would place him in a non-deployable unit to tend to the needs of his mother as well as in close proximity to other family members. 

	b.  10 May 2004 letter in which the Horizons Mental Health Center Medical Director describes the medical situation with the applicant's mother.  He wrote in support of the applicant's efforts to help his mother by taking her on as a military dependent.  He indicates she had been a patient of his intermittently since October 2003.  She suffered from a serious depression that had included potentially lethal suicide attempts.  She was a highly-dependent individual and had been unable to provide for herself.  She suffered from several serious medical issues including Opiate Dependence, Mood Disorder and Dependent Personality Disorder.  The issues were long-standing and would require chronic on-going treatment. 

	c.  Copy of his mother's death certificate showing her date of death as 
24 October 2006.

	d.  22 September 2004 memorandum from SSG Andres L____ stating that in the 9 months he knew the applicant he saw nothing that would lead him to believe the applicant was anything but a stellar performer as a Soldier.

	e.  DA Form 1059 showing he completed the "Sniper Course-TATS" on 
6 February 2003.

	f.  His Automated Verification of Military Experience and Training

13.  Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations) 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 include 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 UOTHC is normally appropriate for a Soldier discharged under this chapter.  

14.  Army Regulation 635-5-1 (Separation Program Designator Codes) prescribes the specific authorities (statutory or other directives), reasons for separating Soldiers from active duty, and the separation program designator (SPD) codes to be entered on DD Form 214 .  The regulation shows the Narrative Reason as "MISCONDUCT (SERIOUS OFFENSE)" for Soldiers discharged under the provisions of Army Regulation 635-200 paragraph 14-12c.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the narrative reason for separation listed on his 
DD Form 214 should be changed.  

2.  The ADRB upgraded his UOTHC discharge to honorable, but determined that the narrative reason was proper and equitable.

3.  The letters and other evidence provided by the applicant was considered; however, they are not sufficiently mitigating to warrant relief in this case

4.  The narrative reason listed for his separation is appropriate considering all of the facts of the case and is correct as listed on his DD Form 214.  The DD Form 214 is a summary of a Soldier’s most recent period of continuous active service. 

5.  In view of the foregoing, there is no basis for granting the applicant's request.


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)                                         AR20110025102



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ABCMR Record of Proceedings (cont)                                         AR20130004815



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