BOARD DATE:  23 January 2014

		DOCKET NUMBER:  AR20130009700


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, through his Member of Congress, requests the following:

* an upgrade of his under other than honorable conditions discharge to a general or honorable discharge
* restoration of his rank and pay grade to sergeant (SGT)/E-5
* foreign service credit for his deployed service in Afghanistan and all service medals that he is entitled to receive based on his service

2.  The applicant states:

* there is no way to overlook a case such as this one
* looking at all the medical evidence will be a no-brainer
* his Immediate Reenlistment Prohibition Code was changed on his enlisted record brief from a code showing he was undergoing a medical evaluation board (MEB) to a code showing he was pending discharge
* this means someone (his commander) cut red-tape and put him out of the Army when it was known that he suffered from severe service-connected disabilities, such as post-traumatic stress disorder (PTSD), traumatic brain injury, and bipolar one disorder
* the Department of Veterans Affairs (VA) gave him a little justice by awarding him service-connected disability compensation pay, in the amount of 90 percent (%)



3.  The applicant provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* business cards from his physical evaluation board (PEB) liaison officer, licensed clinical social worker (LCSW), and an inspector general from the 101st Airborne Division, Fort Campbell, KY
* a DD Form 689 (Individual Sick Slip) and a business card from an LCSW
* an explanation of benefits from the Social Security Administration, dated 10 June 2010
* a 2-page, single-spaced, typed explanation (in the applicant's words) of the physician comments contained on a separate Standard Form (SF)  600 (Health Record – Chronological Record of Medical Care) 
* an SF 600, dated 11 December 2009
* coding and discharge summaries from Skyline Hospital – Madison Campus, dated 16 September 2009
* a psychiatric evaluation from Skyline Hospital – Madison Campus, dated   16 September 2009
* a psychological evaluation from Skyline Hospital – Madison Campus, dated 18 September 2009
* a 28-page, single-spaced, typed paper, titled "Questions the Army Needs to Answer for Senator Lxxxx Axxxxxxxx's Office"

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 6 June 2006.  He completed training and was awarded military occupational specialty 25Q (Multichannel Transmission Systems Operator-Maintainer).  

2.  On or about 3 January 2007, upon completion of his initial entry training, he was assigned to the 40th Signal Battalion at Fort Huachuca, AZ.

3.  He deployed to Iraq in support of Operation Iraqi Freedom (OIF), from on or about 30 November 2007 through on or about 11 March 2009.

4.  On or about 21 July 2009, he was assigned to the 2nd Battalion, 502nd Infantry Regiment, 2nd Brigade Combat Team, 101st Airborne Division.

5.  On 13 July 2010, his unit changed his duty status from "present for duty" to "confined in the hands of civil authorities."

6.  On or about 16 July 2010, an arrest warrant was issued to the Federal Bureau of Investigation, for the applicant's arrest for the offense of knowingly transmitting in interstate commerce, a communication containing a threat to injure another person, in this case the judge adjudicating the applicant's ongoing custody dispute. 

7.  On 21 July 2010, he was indicted by the U.S. District Court, Eastern District of Tennessee at Knoxville, for on or before 9 July 2010, knowingly transmitting in interstate commerce a communication, namely a video of himself posted on the public internet website "You Tube," wherein he communicated a threat to injure and kill the Knox County Chancellor.

8.  On 31 March 2011, he was found guilty by the unanimous vote of the members of the jury and was sentenced to be imprisoned for a total term of      18 months. 

9.  On 6 April 2011, the applicant's immediate commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-5, for misconduct – conviction by civil court.  His immediate commander noted that he would recommend the applicant receive an under other than honorable conditions discharge.

10.  On 14 April 2011, the applicant's immediate commander recommended the applicant's separation from the Army under the provisions of Army Regulation 635-200, paragraph 14-5, for misconduct – conviction by civil court.

11.  On 15 April 2011, the applicant's brigade commander directed the applicant's separation from the Army under the provisions of Army Regulation 635-200, paragraph 14-5, for misconduct – conviction by civil court.  He further directed the applicant's service be characterized as under other than honorable conditions.

12.  On 21 April 2011, after consultation with counsel, the applicant acknowledged receipt of the notification memorandum.  He acknowledged he had been advised by counsel of the basis for the contemplated action to separate him under the provisions of Army Regulation 635-200, paragraph 14-5 and its effect, of the rights available to him and of the effect of any action taken by him in waiving his rights.  He requested representation at, and appearance before, an administrative separation board.  He elected not to submit statements in his own behalf.

13.  On 29 April 2011, his case was referred to an administrative separation board.

14.  On 7 June 2011, an administrative separation board considered his separation under the provisions of Army Regulation 635-200, paragraph 14-5.  The available evidence does not show that a recommendation was made.

15.  On 22 July 2011, the Commanding General, 101st Airborne Division, directed that the applicant be reduced to the rank/pay grade of private/E-1 and separated from the Army under the provisions of Army Regulation 635-200, paragraph 14-5, with an under other than honorable conditions discharge.  

16.  On 26 August 2011, he was discharged from the Army under the provisions of Army Regulation 635-200, chapter 14, by reason of a pattern of misconduct (civil conviction).  The DD Form 214 he was issued shows:

* he was discharged in the rank/grade of private/E-1
* he received an under other than honorable conditions discharge

17.  On 16 November 2012, after a careful review of his application, military records, and all other available evidence, the Army Discharge Review Board (ADRB) determined he was properly and equitably discharged and denied his request for a discharge upgrade.

18.  His service medical records were not available for review.  There is no documentation in the available record, nor has he provided any documentation, that shows he was treated for any physical or mental illness or injury that might be attributed to his period of active service, or that was of the severity to warrant his entry into the Physical Disability Evaluation System.

19.  An email from the Defense Finance and Accounting Service, Indianapolis, IN, dated 14 January 2014, confirms he received hostile fire/imminent danger pay and combat zone tax exclusion during the period 9 March 2008 through
2 March 2009, for duty in Kuwait.  

20.  The evidence of record does not show he deployed to and served in Afghanistan.

21.  He submitted:

	a.  Numerous medical documents, from both military and civilian doctors, which attest to his medical condition prior to his incarceration and discharge processing.  These documents mention anxiety disorder and PTSD; however, none of the submitted documents establish:

* a diagnosis of PTSD by competent authority or military doctor
* a diagnosis that shows he failed retention standards and affected his ability to perform the duties required by his grade or specialty
* an unfitting condition (meaning, with such a condition he could not return to full duty)

	b.  A 28-page, single-spaced, typed paper, titled "Questions the Army Needs to Answer for Senator Lxxxx Axxxxxxxx's Office," wherein he takes exception with the Army's processing of his separation for reasons other than medical disability.  He alleges his chain of command was negligent in not considering his mental status during his discharge processing; they should have processed him for medical disability instead.  

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

	a.  Paragraph 1-33b (Disposition through medical channels) states that when the medical treatment facility (MTF) 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 or she will refer the Soldier to an MEB in accordance with Army Regulation 40-400 (Patient Administration).  The administrative separation proceedings will continue, but final action by the separation authority will not be taken pending the results of the MEB.

		(1)  If the MEB findings indicate that referral of the case to a PEB is warranted for disability processing under the provisions of Army Regulation
635–40 (Physical Evaluation for Retention, Retirement, or Separation), the MTF commander will furnish copies of the approved MEB proceedings to the Soldier’s General Court-Martial Convening Authority (GCMCA) and unit commander.  The GCMCA 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 (emphasis added); or

			(b) Other circumstances of the individual's case warrant disability processing instead of further processing for administrative separation (emphasis added).

		(2)  The authority of the GCMCA to determine whether a case is to be processed through medical disability channels or under administrative separation provisions will not be delegated.

		(3)  Disability processing is inappropriate if the conditions in (1)(a) and
(b) do not apply, if UCMJ action has been initiated, or if the Soldier has been medically diagnosed as drug dependent.

	b.  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.

	c.  Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

	d.  Chapter 14 establishes policy and prescribes procedures for separating Soldiers for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, frequent involvement in incidents of a discreditable nature with civil and/or military authorities, commission of a serious offense, conviction by civil authorities, desertion, or absence without leave.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter; however, the separation authority may direct an under honorable conditions (general) discharge if such is merited by the Soldier’s overall record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his under other than honorable conditions discharge was carefully considered; however, there is insufficient evidence to support this request.

2.  The applicant contends his chain of command was negligent in not considering his mental status during his discharge processing; they should have processed him for medical disability.  This contention is rejected. 



3.  The evidence of record shows the applicant was indicted by the U.S. District Court, Eastern District of Tennessee at Knoxville.  He was tried and found guilty of the crime for which he was indicted, and he was sentenced to imprisonment for a period of 18 months.  The evidence of record confirms he was guilty of misconduct, which was grounds for administrative separation from the Army under the provisions of Army Regulation 635-200, chapter 14.  

4.  As stated in Army Regulation 635-200:

   a. When the MTF commander or attending medical officer determines a Soldier being processed for administrative separation under chapter 14 does not meet the medical fitness standards for retention, he or she will refer the Soldier to an MEB in accordance with Army Regulation 40-400.  The administrative separation proceedings will continue, but final action by the separation authority will not be taken pending the results of the MEB. 

   b. If the MEB findings indicate that referral of the case to a PEB is warranted for disability processing under the provisions of Army Regulation 635–40, the MTF commander will furnish copies of the approved MEB proceedings to the Soldier’s GCMCA and unit commander.  The GCMCA 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 (emphasis added):

			(1) The Soldier’s medical condition is the direct or substantial contributing cause of the conduct that led to the recommendation for administrative elimination (emphasis added); or

			(2) Other circumstances of the individual case warrant disability processing instead of further processing for administrative separation (emphasis added).

5.  The evidence of record does not definitively show that his medical condition was a direct or substantial contributing cause of the misconduct that led to his administrative separation.  Regardless, it was the GCMCA's prerogative to make his determination, based on authority and experience, to refer the applicant to an MEB/PEB in lieu of separation processing.  He chose not to do so.

6.  Accordingly, his chain of command proceeded with his separation action under the provisions of Army Regulation 635-200, paragraph 14-5, for misconduct (conviction by civil court).  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He benefited from the advice of counsel.  The separation authority approved his discharge and he was ultimately issued an under other than honorable conditions discharge.

7.  The applicant's request for restoration of his rank and pay grade to SGT/E-5 was carefully considered; however, there is insufficient evidence to support this request.  The evidence of record shows his reduction was ordered by the Commanding General of the 101st Airborne Division, in accordance with his discharge processing.  There is no error or injustice.

8.  The applicant's request for foreign service credit for his deployed service in Afghanistan, in addition to any service medals for which he may be entitled based on that service, was carefully considered; however, there is insufficient evidence to support this request.  The evidence of record does not show he deployed to Afghanistan; therefore, there is no basis to correct his DD Form 214 to show foreign service in Afghanistan, or to award him service medals for such service.

9.  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)                                         AR20110020788



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ABCMR Record of Proceedings (cont)                                         AR20130009700



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