IN THE CASE OF:	  

		BOARD DATE:	  27 May 2014

		DOCKET NUMBER:  AR20130015774 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was discharged by reason of medical disability vice misconduct.

2.  The applicant states he could have caught a disease, but he got circumcised.

3.  The applicant provides email correspondence, dated 10 and 11 February 2004.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 28 January 2003 and he held military occupational specialty 92G (Food Service Specialist).  He was assigned to the 552nd Military Police (MP) Company, Korea.

2.  Between April and July 2004, he was counseled on numerous occasions by various members of his chain of command for writing bad checks, disrespect, and disobedience.

3.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), as follows

* on 3 June 2004 for missing movement
* on 29 June 2004 for breaking restriction

4.  On 20 August 2004, he underwent a command-directed mental status evaluation.  The examining psychologist found the applicant's behavior was normal and passive.  He was fully alert, fully oriented, and displayed an unremarkable mood.  His thinking was clear, thought content normal but with paranoid ideation, and his memory good.  He had the mental capacity to understand and participate in proceedings, he was mentally responsible, and he met retention standards.  The examining psychologist also noted the applicant was seen after a report of suspected psychotic ideation.  He cleared the applicant for any administrative action deemed appropriate by the command.

5.  On 1 September 2004, his immediate commander notified him that he was initiating action to discharge him for misconduct under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Administrative Separations), paragraph 14-12b.  The commander cited the reasons as the numerous counselings and two Article 15's he had received.

6.  His discharge action was subsequently approved by the separation authority who directed the issuance of a General Discharge Certificate.  On 9 October 2004, he was discharged accordingly.

7.  His DD Form 214 shows he was discharged under honorable conditions (general) under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of misconduct.

8.  His available records are void of any evidence showing he was ever diagnosed with or treated for any medical/mental condition while serving on active duty that permanently prevented him from performing his duties and would require referral to a medical evaluation board (MEB).

9.  On 10 April 2008 and 17 February 2012, the Army Discharge Review Board denied the applicant's request for change in the character and/or reason of his discharge and determined he had been properly and equitably discharged.

10.  On 15 April 2013, the ABCMR denied his request for an upgrade of his discharge.  However, the Deputy Assistant Secretary of the Army for Army Review Boards approved his request for an upgrade of his discharge and determined:

	a.  Although he claimed the characterization of his discharge was unjust because his mental status at the time affected his behavior, an Army mental health professional had determined he was fully competent and responsible for his behavior prior to his separation.  However, the totality of his available medical records painted a different picture.

	b.  Prior to his enlistment in the Regular Army, he was disqualified for employment by the New York City Police Department for mental health reasons.  During his active duty service, he was referred for three mental health evaluations that noted paranoid ideation, occupational problems, alcohol abuse, and an adjustment disorder with mixed disturbance of emotions.  The Department of Veterans Affairs awarded him a 100-percent disability rating for service-connected schizophrenia effective only 2 years after his separation.

	c.  Although his discharge in 2004 was not improper, in light of his mental health issues, the characterization was too harsh.  Even though he met retention standards and did not require processing through the Physical Disability Evaluation System (PDES), his mental status likely affected his judgment.  As a matter of equity, his discharge was upgraded to honorable.

11.  His original DD Form 214 was voided and he was issued a new DD Form 214 on 17 May 2013 showing he was discharged on 9 October 2004 under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of misconduct with his service characterized as honorable.

12.  Army Regulation 635-200 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 minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities, and desertion or absence without leave.  A discharge under other than honorable conditions was normally considered 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.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army's PDES and governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states MEB's/physical evaluation boards are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualification for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.

14.  Army Regulation 635-40 further states the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature/degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before that service member can be medically separated or retired.

15.  Title 10, U.S. Code, section 1552, states the Secretary of a military department may correct any military record of the Secretary's department when the Secretary considers it necessary to correct an error or remove an injustice.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant was discharged on 9 October 2004 by reason of misconduct.  His narrative reason for separation was assigned based on his discharge under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12b.

2.  There is no evidence in his available records and he has not provided any evidence showing he was diagnosed with or treated for any medical/mental condition while serving on active duty that permanently prevented him from performing his duties and required referral to an MEB.  Army Regulation 635-40 states the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.

3.  When his character of service was upgraded to honorable in 2013, it was determined that although his mental status may have affected his judgment, he did meet retention standards and his available medical records showed he did not require processing through the PDES.

4.  In view of the foregoing, there is no evidentiary basis for granting the applicant the 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 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)                                         AR20130015774



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ABCMR Record of Proceedings (cont)                                         AR20130015774



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