IN THE CASE OF:	   

		BOARD DATE:	  29 July 2014

		DOCKET NUMBER:  AR20130020564 


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:

	a.  that the narrative reason for his separation be changed to show he was discharged due to a medical disability rather than due to "Misconduct (Minor Infractions); and 

	b.  that his general discharge under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states, in effect, that his chain of command did not do the right thing and was more concerned with being politically correct than caring for him and looking out for his well-being.  He contends that he was unjustly discharged.
His commander referred him for a mental health evaluation which resulted in him being diagnosed with a mental illness while on active duty.  His commander was aware of this diagnosis, but instead of being medically discharged he was discharged due to misconduct.  Several of his relatives died while he was serving on active duty.  The applicant contends that he should have medically boarded by the Department of Defense.  Department of Veterans Affairs (VA) doctors and psychiatrists determined that he suffers from Bi-Polar Disorder and Post-Traumatic Stress Disorder (PTSD).  He is currently undergoing treatment and has been prescribed medications for these disorders.




3.  The applicant provides:

* 2 DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ))
* a Standard Form 600 (Health Record - Chronological Record of Medical Care)
* a DA Form 4856 (Developmental Counseling Form)
* one page of a self-authored letter
* a VA Form 28-1900 (Disabled Veterans Application for Vocational Rehabilitation)

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.  Following a short period of honorable service in the Army National Guard, the applicant enlisted in the Regular Army on 9 July 2008.  He held military occupational specialty 44B (Metal Worker) and served in Hawaii for a period of 11 months and 29 days.  The highest rank/pay grade that he attained while serving was private first class (PFC)/E-3.  However, at the time of his discharge he held the rank/pay grade of private (PV2)/E-2.

3.  The applicant's record contains DA Forms 4856 which show he received adverse counseling on the following dates for the reasons shown:

	a.  19 August 2008, for violation of Article 92, UCMJ - failing to obey a lawful order or regulation, by losing accountability of his military identification card, which also caused him to be considered out of uniform.  He was advised that separation actions may be initiated in accordance with Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) if unsatisfactory behavior or performances continued.

	b.  21 August 2008, for violation of Article 92, UCMJ - failing to obey a lawful order or regulation, by losing accountability of his military identification card, which also caused him to be considered out of uniform.  He was reminded that separation actions may be initiated in accordance with Army Regulation 635-200 if unsatisfactory behavior or performances continued.

	c.  2 October 2008, for losing his wallet which contained his driver's license and a cashier's check for his first month's rent on his apartment.  As a result, he was instructed to park his vehicle in the unit parking lot and leave it there until he replaced his driver's license and showed it to his supervisor.  He was advised that this behavior indicated that he was irresponsible and could not manage his personal affairs.  He was told that his attitude and behavior were unbecoming of a Soldier and that he needed to change as soon as possible in order to avoid getting into trouble.  Each week he had a new issue and he was beginning to become more of a problem than an asset to the Army.  He was reminded that his leadership had helped him with every issue he'd had since arriving at the unit and was advised that it was time for him to take responsibility for his own actions.
He was reminded that separation actions may be initiated in accordance with Army Regulation 635-200 if unsatisfactory behavior or performances continued.

	d.  8 October 2008:

		(1)  for violation of Article 87, UCMJ - missing movement, by being 30 minutes late for physical training (PT) formation and not showing up for detail duty at a unit carwash.  

		(2)  for violation of Article 92, UCMJ - failing to obey a lawful order or regulation, by failing to maintain his phone service for the sake of communication with his unit.

		(3)  for being in danger of violating Article 86, UCMJ - absence without leave (AWOL), by not being at his appointed place of duty at the prescribed time without first obtaining permission from his leaders.

		(4)  He was reminded that separation actions may be initiated in accordance with Army Regulation 635-200 if unsatisfactory behavior or performances continued.

4.  On 2 December 2008, the applicant went on sick-call to seek treatment for the following symptoms:  severe headache, weakness, sensitivity to odors, nausea, an inability to hold down food, constant broken and watery stool, hot and cold flashes, and night sweats.  As a result, he was given quarters for the remainder of the day, restricted from PT for 2 days, and instructed to schedule a follow-up appointment.

5.  On 29 December 2008, the applicant was treated in the Emergency Department at Wahiawa General Hospital located in Wahiawa, HI.  His exam showed that he had atrial fibrillation, a disturbance in the rhythm of the heartbeat, which was irregular and often much faster than the regular pulse.  He was advised that atrial fibrillation is often associated with heart or lung disease.  The applicant was provided discharge instructions and advised to seek immediate medical attention if he began to:  have chest pain, experience shortness of breath, or feel faint or pass out.

6.  The applicant's record contains a DA Form 4856 which shows he was counseled by his First Sergeant (1SG) on 27 January 2009 regarding events that occurred on the day prior.

	a.  The Platoon Sergeant (PSG) informed the 1SG that the applicant was on quarters the morning of 26 January 2009.  The 1SG inquired as to why the applicant had come off quarters the day prior and then reported to the medical treatment facility without first reporting to accountability formation?  The PSG informed the 1SG that the applicant had gone to Tripler Army Medical Center (TAMC) at approximately 0030 hours on 26 January and failed to tell his noncommissioned officer (NCO) support channel.

	b.  The 1SG directed the PSG to accompany him to the applicant's quarters in order to ensure he was at his quarters and to determine whether he was in need of further assistance.  When they arrived at the applicant's quarters, he was not there.  The PSG had attempted to contact the applicant telephonically several times, but he did not answer his phone.  The 1SG called the applicant and he answered immediately.  The 1SG informed the applicant that he was his new 1SG and asked where he was.  The applicant informed the 1SG that he was at his mother-in-law's home.  The 1SG informed him that he was not to be anywhere except his quarters when directed by a medical officer to be "on quarters" unless prior approval had been coordinated to leave his quarters.  The applicant became extremely upset, yelling at the 1SG and telling him that he'd been listening to NCOs who were "running him down" and obviously did not know the situation.

	c.  The 1SG informed the applicant that he did not care what it sounded like to him and instructed him to report to his quarters immediately.  The applicant told the 1SG that he had rights and that he did not care if the applicant had a heart attack.  The 1SG then instructed the applicant several times to get to his quarters now.  The 1SG stopped talking until the applicant quieted down and informed him that he had 20 minutes to meet him at his quarters.  When the applicant arrived, the 1SG informed him that he was to collect his uniform, personal hygiene items and any medications he required because he was being moved into the barracks for the night with the 1SG's recommendation to the Troop Commander that his pass privileges be pulled.  He also informed the applicant that he would no longer go to any medical appointments or sick call without an NCO escort and that any emergency room visits had to be reported to his PSG.

7.  A DA Form 4856 shows he was counseled by his Troop Commander on 29 January 2009 regarding why the commander was referring him for a mental health evaluation.  The commander informed the applicant that he was a valuable member of the organization and ensuring that he was physically and mentally healthy was one of his top priorities.  As such, the commander informed the applicant that the following behaviors and/or verbal expressions served as the catalyst for his referral:

* On 27 January 2009, he told another Soldier that he was having problems coping with military life and that suicidal thoughts had crossed his mind
* From 2200 to 2330 that same night, he spoke with a chaplain about being stressed, depressed, and not thinking he could handle it anymore

The applicant acknowledged receipt of the referral for a mental health evaluation, but denied telling the other Soldier that he was going to kill himself.

8.  His record contains a TAMC Form 108 (Request for Mental Health Consultation (Unit Referral of Active Duty Individual)) which shows the commander noted that the applicant looked disheveled in appearance and was responsive, but not focused on their conversation when counseled regarding his referral.  He indicated that the applicant's past and present performance had been poor.  Although the applicant was helpful to others, the following concerns had been observed:

* Riding sick call
* Refusing effort
* Isolative
* Desire for discharge
* Cheating and/or lying
* Difficulty following directions
* Difficulty with authority
* Difficult with peers


The following evidence of emotional/adjustment difficulty had come to command attention:

* Homesickness
* Nervousness
* Depression (blues)
* Stutters
* Carelessness
* Problems with concentration

9.  His record contains a DA Form 3822-R (Report of Mental Status Evaluation) which shows the applicant underwent a mental status evaluation on 29 January 2009.  The mental health professional who conducted the evaluation determined that the applicant had no mental defects sufficient to warrant separation from the service under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  The mental health professional also opined that he/his:

* behavior was normal
* was fully alert
* was fully oriented
* mood or affect was unremarkable
* thinking process was clear
* thought content was normal
* memory was good
* had no evidence of a psychiatric condition which would prevent him from being released for normal duty
* was evaluated for suicidality and was not a threat to himself or others
* was not required to be on watch for risk of self-harm
* was mentally responsible for his behavior, could distinguish right from wrong
* possessed sufficient mental capacity to proceed with normal duty

10.  On 17 March 2009, the applicant received a negative counseling from his platoon leader for being disrespectful in tone and demeanor to an NCO on 16 March 2009.  He was reminded that separation actions may be initiated in accordance with Army Regulation 635-200 if unsatisfactory behavior or performances continued.

11.  On 30 March 2009, while holding the rank/pay grade of PFC/E-3, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ for violating Article 91, UCMJ by being disrespectful in deportment toward his 1SG on 26 January 2009 by yelling at him and also being disrespectful in language toward his PSG on or about 16 March 2009.  His punishment was reduction to the rank/pay grade of PV2/E-2; forfeiture of $366 pay for 1 month, suspended; and 14 days of extra duty.

12.  The applicant provides an SF 600 which shows he had an appointment at the Neurology Clinic, TAMC, on 31 March 2009.  This form also shows the applicant had previously been seen by medical personnel for 43 various reasons/symptoms.

13.  On 8 April 2009, a FLAG was initiated against the applicant in order to suspend favorable personnel actions while he was pending field-initiated elimination.

14.  On 13 April 2009, the applicant received counseling from his Troop Commander regarding his receipt of a Bar to Reenlistment as a result of his pattern of misconduct in the following areas:

* Absence without leave
* Missing movement
* Failure to obey an order or regulation
* Disrespect to a senior NCO

The applicant was informed that he was receiving a Bar to Reenlistment for not being able to meet Army standards and that he would have an opportunity to be reevaluated within two 90-day periods.  If he had not made the Army standard within this period, he would be separated from the Army.  He was reminded that separation actions may be initiated in accordance with Army Regulation 635-200 if unsatisfactory behavior or performances continued.

15.  On 23 April 2009, the applicant underwent a pre-separation medical examination.  

	a.  In conjunction with this exam, the applicant completed a DD Form 2807-1 (Report of Medical History) wherein he indicated, in part, that he suffered from dizziness, frequent or severe headaches, and depression or excessive worry.  He stated that the dizziness, headaches, and pain in his right arm had begun after he received an Anthrax shot.  He attributed the depression to difficulty with adapting to military life.  He also made several references to having to undergo anal surgery.

	b.  In conjunction with this exam, the examining physician completed a DD Form 2808 (Report of Medical Examination) wherein he noted that despite diagnosis and reports of rectal bleeding/fissures, the applicant's external exam was normal.  The physician did not notice any abnormalities during the clinical evaluation.  Item 77 (Summary of defects and diagnoses) of this form contains the entry "Rectal pain hemorrhoids vs fissures."  In item 78 (Recommendations - further specialist examinations indicated) the physician noted "Symptom complex may be compatible w/some military positions however he does not thrive in his current setting, apparently due to his medical issues."

16.  The applicant provides one page of a self-authored letter addressed to a Member of Congress (MOC) and dated 6 June 2009.  In this letter, the applicant recanted the details of the date that he was assigned to quarters and elected to spend the day at his mother-in-law's house instead of his own quarters from his perspective.  He attested that he opted to go to his mother-in-law's house because he and his wife did not have any furniture at the time for them or his daughter to sleep on so, he had two living quarters.  He reported that when a man who identified himself as his new 1SG called, he put the phone on speaker mode because he had been experiencing problems with his PSG, who had previously called and used graphic language and threatened him.  He had reported that incident to the Inspector General (IG), but nothing was ever done about it.  The 1SG asked how the applicant was doing on quarters and he told him that he was doing fine.  Then the 1SG asked him where he was and the applicant told him that he was in his quarters; at that time the 1SG started using graphic language at him.  The applicant's wife heard everything that the 1SG said and was upset.  The 1SG ordered him to go to his other quarters.  When he arrived at his quarters his 1SG and PSG were there waiting for him, which was in violation of Article 138, UCMJ because of his rights as a Soldier.  He was not given 24-hour notice of his chain of command coming to his house.  The 1SG made him move out of his house and into the barracks for 1 week.  The IG made his chain of command allow him to return home.  When he received his Article 15, he was granted permission to have the chaplain speak on his behalf.  However, when the chaplain asked the 1SG if it was true that he had called the applicant's house and provoked him, the commander forbade the chaplain from going any further with the proceedings.  The chain of command took his rank and money.  Now they were trying to chapter him out of the Army for disrespect to a senior NCO and they had AWOL and missing movement as point of discussion on his [separation packet].

17.  On 17 June 2009, the applicant's immediate commander notified the applicant that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200, paragraph 14-12(a), for Misconduct (Minor Infractions).  The specific reasons for this proposed action were his receipt of an Article 15 for being disrespectful toward two NCOs and his failure to be at his appointed place of duty.
18.  On 17 June 2009, the applicant acknowledged receipt of the separation notification memorandum.  He acknowledged that he was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him.  He acknowledged he was not entitled to consideration of his case by and personal appearance before an administrative separation board and he elected not to submit a statement in his own behalf.  He further indicated he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him and he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of a discharge under other than honorable conditions.

19.  On 23 June 2009, the applicant's immediate commander initiated action to separate him from the service under the provisions of Army Regulation 635-200, paragraph 14-12(a), for Misconduct (Minor Infractions).  The applicant's intermediate commander recommended approval of the discharge action with a general discharge under honorable conditions.

20.  On 25 June 2009, the separation authority, approved the separation action and directed that the applicant be discharge with a general discharge.

21.  On 22 July 2009, the applicant was discharged accordingly.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12(a) due to Misconduct (Minor Infractions) with a general discharge.  He completed 1 year and 14 days of creditable active service.

22.  On 10 August 2009, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  He cited the reasons detailed in the letter above and an incident wherein he attested that the 1SG cursed at him and ordered him to walk up a hill in spite of his medical profile as justification for his upgrade.  On 18 August 2010, the ADRB President informed the applicant that after careful review of his application, military records and all other available evidence, the ADRB determined he was properly and equitably discharged.  Accordingly, his request for a change in the character and/or reason of his discharge was denied.

23.  The applicant provides a VA Form 28-1900, dated 28 February 2014, which shows he submitted an application for vocational rehabilitation to the VA.  In item 15a (What is your disability rating?) of this form he indicated that he was 100 percent totally and permanently disabled.  In item 15b (What is the nature of your disability (disabilities)?) he entered "Biopolar" presumably indicating that he suffers from bi-polar disorder.  In item 16 he indicated that he served in the Gulf War.  He authenticated this document with his signature thereby certifying that the information he had entered on this form was true and complete to the best of his knowledge and belief.  He also realizes that making willful false statements concerning a material fact in a claim of vocational rehabilitation benefits is a punishable offense that may result in fine or imprisonment or both. 

24.  The applicant's record is devoid of any evidence and he has not provided any evidence showing that he served in any armed conflict or that he was diagnosed with any unfitting medical condition while serving on active duty.

25.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories include minor 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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

	a.  Paragraph 1-35 states that when the examining medical officer decides a member being considered for elimination for misconduct (chapter 14) does not meet the retention medical standards, he or she will refer that member to a medical board.  The medical treatment facility commander will furnish a copy of the approved board proceedings to the commander exercising general court-martial convening authority (GCMCA) over the member concerned.  The commander exercising GCMCA will direct the member to be processed through disability channels per Army Regulation 635-40 when the disability is determined to be the cause or substantial contributing cause of the misconduct or circumstances warrant disability processing instead of administrative processing.

	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.

26.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Paragraph 3-1 provides that 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 and degree of physical disability present with the requirements of the duties the member may reasonably 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 he or she can be medically retired or separated.

27.  Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, provides the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individuals.  These medical conditions and physical defects, individually or in combination, are those that significantly limit or interfere with the Soldier's performance of his or her duties, may compromise or aggravate the Soldier's health or well-being if they were to remain in the military service (this may involve dependence on certain medications, appliances, severe dietary restrictions, or frequent special treatments, or a requirement for frequent clinical monitoring), may compromise the health or well-being of other Soldiers, and/or may prejudice the best interests of the government if the individual were to remain in the military service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to change his general discharge to a medical discharge has been carefully examined; however, it was determined that there is insufficient evidence to support this request.

2.  The evidence of record shows the applicant received negative counseling, a bar to reenlistment, and NJP under the provisions of Article 15, UCMJ for numerous acts of misconduct.

3.  Accordingly, his chain of command initiated separation action against him for a pattern of misconduct under the provisions of chapter 14 of Army Regulation 635-200.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The separation authority approved his discharge and he was ultimately issued a general discharge under the provisions of chapter 14 of Army Regulation 635-200 due to misconduct.

4.  The available evidence further shows his discharge was appropriate because the quality of his service during his enlistment was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  Based on his overall record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

5.  With respect to a medical discharge, there is no evidence in his records which shows he was physically or mentally unfit at the time of his discharge.  A Soldier is considered unfit when the evidence establishes that the Soldier is unable to reasonably perform the duties of his or her office, grade, rank, or rating.  In the applicant's case, he underwent a separation physical as well as a mental status evaluation prior to his discharge.  The doctor/physician found him medically qualified and/or psychiatrically cleared for separation.  

6.  The applicant failed to show through the evidence submitted and the evidence of record that he was medically/physically unfit at the time of discharge and that he should have been processed for separation due to a physical disability.  In view of the circumstances in this case, there is insufficient evidence to grant 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 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)                                         AR20130020564





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ABCMR Record of Proceedings (cont)                                         AR20130020564



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