IN THE CASE OF:	  

		BOARD DATE:	  11 February 2014

		DOCKET NUMBER:  AR20130010535 


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 under other than honorable conditions discharge.

2.  The applicant states:

   a.  He was discharged on 16 November 2010 with an under other than honorable conditions discharge.  On 29 November 2010, he applied for Department of Veterans Affairs (VA) benefits and waited 2 1/2 years for his application to be processed.  In a letter, dated 14 May 2013, the VA advised him that his service was dishonorable for VA purposes and denied his entire claim.  His disabilities were incurred or aggravated during active military service.  He feels he may qualify for medical or related benefits regardless of separation and characterization of his service.

   b.  He has made numerous changes to his life.  He admits he has made serious mistakes in his life.  He lost almost everything for these mistakes.  He needs help with post-traumatic stress disorder (PTSD), depression, and numerous health issues.  He feels it is an injustice to be ineligible for VA benefits for his periods of service from 15 June 1982 to 14 June 1985, 25 November 1989 to 14 January 1992, and from 15 January 1992 to 16 November 2010.  He requests an upgrade of his discharge and characterization of service in order to be eligible for VA benefits.

   c.  On 24 November 1984, he was involved in his first firefight, while at the Demilitarized Zone, United Nations Command, Camp Kitty Hawk, Joint Security Area, Panmunjom, South Korea.  He also served in Operations Desert Shield/Storm from September 1991 through April 1994.  He further served in Operation Joint Endeavor (Bosnia) from June 1996 through March 1997 and in Operation Iraqi Freedom from June 2004 to February 2005.

   d.  He was advised at the time of his separation that he would be able to receive VA benefits based on the type of discharge he received.  He had been in the Army his entire adult life either on active duty or in the U.S. Army Reserve (USAR).  His life was the Army and he lost it.  He signed his very first enlistment contract on 16 July 1981 and was released on 10 November 2010.  He had a successful career until the end.  He had numerous awards and decorations.  He went from being a private to a major and from being a Soldier to being a leader.  The only thing he has left is his life and he needs medical and health care.

   e.  He is currently seen at the Certified Community Mental Health Center.  He receives treatment for PTSD and depression, and he is taking medication provided by the VA.

3.  The applicant provides copies of the following:

* Two DD Forms 214 (Certificate of Release or Discharge from Active Duty) ending on 14 June 1985 and 1 July 1993
* 2010 DA Form 199 (Physical Evaluation Board (PEB) Proceedings)
* DD Form 214 ending on 16 November 2010
* 2012 Chronological Statement of Retirement Points
* 2012 Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter)
* 2012 DD Form 215 (Correction to DD Form 214)
* 2013 VA Rating Decision
* 2013 letter from the VA
* 2013 letter from the Hill Country Counseling

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) on 15 June 1982 for 3 years and he held military occupational specialty 11B (infantryman).  He was honorably released from active duty, in pay grade E-4, on 14 June 1985.  He was credited with completion of 3 years of net active service.

2.  He was appointed in the USAR, Field Artillery, as a second lieutenant, on 7 May 1988.  He entered active duty on 25 November 1989 and held area of concentration (AOC) 13A (field artillery).  He was promoted to first lieutenant on 7 May 1991.  
3.  He was honorably released from active duty on 1 July 1993, for reduction in authorized strength, and was transferred to the USAR Control Group (Reinforcement).  He was credited with completion of 3 years, 7 months, and 7 days of net active service.

4.  His records show he served in Southwest Asia from 19 September 1991 to 18 April 1992 and Bosnia from 23 June 1996 to 22 March 1997.  

5.  He was ordered to extended active duty on 26 September 1999.  His AOC was 51A (systems development).  He was promoted to major on 1 January 2004. He served in Iraq from 26 April 2004 through 25 January 2005.

6.  On 21 May 2010, the applicant was notified of initiation of elimination proceedings under the provision of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraphs 4-b and 4-2c, by reason of misconduct or professional dereliction.  He was directed to show cause for retention in the Army.  He was advised of his rights and that his elimination was based on:

   a.  Personal misconduct and conduct unbecoming an officer, including bulk cash smuggling, false statements, and other acts affecting a personal financial interest (conflict of interest) which led to his indictment in the U.S. Federal District Court.

   b.  Derogatory information, a General Officer Memorandum of Reprimand, dated 31 August 2000, for displaying poor judgment and dishonest conduct in falsifying and submitting official documents for personal gain, which resulted in him receiving extra pay from the U.S. Government for which he was not entitled.  

7.  On 13 July 2010, after consulting with counsel, the applicant voluntarily tendered his resignation under the provisions of Army Regulation 600-8-24 in lieu of further elimination proceedings.  He acknowledged he understood he could receive a general or an under other than honorable conditions discharge and the results of issuance of an under other than honorable conditions discharge.  

8.  On 13 July 2010, his company and battalion commanders recommended approval of his resignation with the issuance of an honorable discharge.  Also on 13 July 2010, the commanding general recommended approval of the resignation in lieu of elimination with an under other than honorable conditions discharge.

9.  On 1 October 2010, a PEB convened and considered his medical conditions of asthma and left shoulder arthropathy.  The PEB found these conditions to be unfitting for the demands of his 51A AOC, with ratings of 30 percent and 10 percent, respectively.  The PEB found his medical conditions of dysthymic disorder, sleep apnea, allergic rhinitis, allergic conjunctivitis, hypertension, gastroesophageal reflux disease, gout, and plantar fasciitis met retention standards and were not unfitting either independently or in combination with any other conditions.  The PEB recommended he be permanently retired with a combined rating of 40 percent.  He concurred with the PEB and its findings and recommendations were approved on 5 October 2010.

10.  An Ad Hoc Review Board considered his case and recommended his separation with an under other than honorable conditions characterization of service.  On 1 November 2010, the Deputy Assistant Secretary – Review Boards (DASA (RB)), after review of the PEB and the applicant's resignation in lieu of elimination, affirmed her decision of 11 August 2010 to accept the applicant's resignation and directed he be discharged from the U.S. Army with an under other than honorable conditions characterization of service.

11.  Accordingly, the applicant was discharged from the Army in the rank of major on 16 November 2010, under the provisions of Army Regulation 600-8-24, paragraph 4-2b.  His service was characterized as under other than honorable conditions.  He was credited with completion of 8 years, 9 months, and 17 days of net active service with no time lost.

12.  On 11 August 2011, the Army Discharge Review Board determined that he was properly and equitably discharged and denied his request for a change in the character and/or reason for his discharge.

13.  On 27 July 2012, he was issued a DD Form 215 which corrected item 12a (Date Entered Active Duty This Period) of his 16 November 2010 to show his entry date as 26 September 1999, vice 15 January 1992 as shown on his DD Form 214.

14.  On 23 August 2012, he was issued a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  His Army Reserve Personnel Center Form 249E (Chronological Statement of Retirement Points) shows he completed 23 years,   1 month, and 23 days of qualifying service for non-regular retirement.

15.  He provided copies of the following:

	a.  VA Rating Decision, dated 13 May 2013, wherein he was advised of the following reference his initial claim submitted on 29 November 2010:

		(1)  Denial of service-connection for cardiac problems; asthma; back pain; hay fever; bicep reattachment; nerve damage to fingers; frequent nose bleeds; umbilical hernia; fractured left ankle; bilateral hearing loss; swollen ankles and edema of lower extremities; inconsistent bowel and constipation; eye condition manifested by poor vision; chronic sinusitis, sinus congestion, and allergies; chronic shoulder pain with limited motion, nerve damage to elbow; ingrown hair on face and back of head; gastric reflux; left rotator cuff repair open with anchor and pins; plantar fasciitis with heel spurs (both feet); sleep apnea; tinnitus; hypertension; ruptured eardrum; anxiety with depression and attention deficit disorder; psoriasis; erectile dysfunction; PTSD; gout; chronic obstructive pulmonary disease; congestive heart failure; low testosterone; and entitlement to special monthly compensation based on loss of use of creative organ; 

		(2)  Denial of service-connection for chronic fatigue syndrome, fatigue, joint pain, muscle pain, neurologic signs, neuropsychological signs and symptoms, migraines, cardiovascular and gastrointestinal signs and symptoms, respiratory conditions, sleep disturbances, and rashes and signs of skin problems due to undiagnosed illness due to environmental hazards of the Gulf War; 

		(3)  Denial of entitlement to individual unemployability; 

		(4)  His service treatment records for his period of enlistment from 15 January 1992 to 16 November 2010 were not considered as his character of discharge for that period was a statutory bar to VA benefits, specifically VA compensation; and

		(5)  The VA must deny service-connection for anxiety with depression and attention deficit disorder and PTSD because these conditions were not diagnosed during his honorable periods of active duty military service prior to 15 January 1995.

   b.  A letter from the VA, dated 14 May 2013, wherein he was advised a decision had been made on his claim for service-connected compensation and provided a copy of their rating decision.

   c.  A letter, dated 12 November 2013, from the Hill Country Counseling, which stated the applicant had attended 14 counseling sessions and his primary diagnosis was PTSD and his secondary was Major Depressive Disorder, and they remained current.  The applicant continued to work on his diagnosed issues by attending counseling, processing emotions, and taking prescribed medication.




16.  Army Regulation 600-8-24 sets the basic authority for the transfer or discharge of officers from active duty.  The regulation states in:

   a.  Paragraph 4-2b, action may be or will be initiated for eliminating officers in the Active Army for misconduct, moral or professional dereliction, or in the interests of national security.  An under other than honorable conditions discharge will normally be issued when an officer is discharged for an involuntarily separated due to misconduct, moral or professional dereliction, or for the final revocation of a security clearance under  as a result of an act or acts of misconduct, including misconduct for which punishment was imposed.

   b.  Paragraph 4-3, an officer referred or recommended for elimination under this chapter who does not meet medical retention standards will be processed through both the provisions of this regulation and through the Medical Evaluation Board (MEB)/PEB process as described in paragraph 1–22.  If a physical or mental condition develops after an officer has been recommended for involuntary separation or after the Board of Inquiry proceedings are completed, the officer's commander will immediately notify the U.S. Army Human Resources Command, Fort Knox, KY.

   c.  Paragraph 1-22, when an officer’s tour of active duty is terminated due to discharge, retirement, or release from active duty the period of service will be characterized as "Honorable," "General (Under Honorable Conditions)," "Under Other Than Honorable," or "Dishonorable."  The character of service will be predicated on the officer’s behavior and performance while a member of the Army.  Characterization normally will be based on a pattern of behavior and duty performance rather than an isolated incident.  However, there are circumstances in which conduct reflected by a single incident may provide the basis of characterization of service when the quality of the officer’s service has met the standards of acceptable conduct and performance of duty.

   d.  Paragraph 1-22a, an Honorable Discharge Certificate will be issued when the separation is based solely on pre-service activities, substandard performance of duty, or final revocation of a security clearance for reasons that do not involve acts of misconduct.

   e.  Paragraph 1-22b, a general discharge will be issued when the officer’s military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A separation under honorable conditions will normally be appropriate when an officer:

* submits an unqualified resignation or a request for release from active duty under circumstances involving misconduct
* is separated based on misconduct, including misconduct for which punishment was imposed, which renders the officer unsuitable for further service, unless an Under Other Than Honorable Conditions separation is appropriate
* is discharged for the final revocation of a security clearance as a result of an act or acts of misconduct, including misconduct for which punishment was imposed, unless a discharge Under Other Than Honorable Conditions is appropriate

   f.  Paragraph 1–24, if a commissioned officer is being processed for release from active duty, separation, or retirement or has been referred for elimination action, when it is determined that the officer has a medical impairment that does not meet medical retention standards, the officer will be processed as set forth in foregoing paragraphs.

   g.  Paragraph 1-24a, a commissioned or warrant officer under investigation for an offense chargeable under the Uniform Code of Military Justice that could result in dismissal or punitive discharge may not be referred for or continue disability processing unless:

* the investigation ends without charges
* the commander exercising proper court-martial jurisdiction dismisses the charges
* the commander exercising proper court-martial jurisdiction refers the charge for trial to a court-martial that cannot adjudge such a sentence

   h.  Paragraph 1-24c, in the case of an officer processed for separation or retirement for misconduct whose physical disability evaluation results in a finding of unfitness and a recommendation that the officer be separated or permanently retired, the Secretary of the Army or his designee may direct that either the separation or retirement action under this regulation or the disability action take precedence.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that on 21 May 2010 the applicant was notified of his elimination from the Army for personal misconduct and conduct unbecoming an officer to include bulk cash smuggling, false statements and other acts affecting a personal financial interest, and indictment in the U.S. Federal District.  On 13 July 2010, after consulting with counsel, he voluntarily tendered his resignation in lieu of elimination from the service.  His chain of command recommended approval.

2.  An Ad Hoc Review Board considered his case and recommended his separation with an under other than honorable conditions characterization of service.  On 1 November 2010, the DASA (RB), upon review of the PEB and the applicant's resignation, directed he be discharged under other than honorable condition.  He was discharged accordingly on 16 November 2010.

3.  He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of this discharge.  He provided no compelling evidence to show his misconduct was the result of any of his medical conditions.  The evidence shows his misconduct diminished the quality of his service below that meriting a general or fully honorable discharge for his period of service from 
26 September 1999 through 16 November 2010.

4.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, there is no basis for granting the applicant the requested relief.

5.  The ABCMR does not grant relief solely for the purpose of an applicant qualifying for medical, and/or other benefits administered by the VA. Furthermore, entitlement to VA benefits are not within the purview of this Board and should be addressed to that agency.

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)                                         AR20130010535





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130010535



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1