IN THE CASE OF:	  

		BOARD DATE:	  30 October 2014

		DOCKET NUMBER:  AR20140004517 


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 following:

* a change of the narrative reason shown in item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) from misconduct to an administrative discharge
* issuance of a new DD Form 214 with this change

2.  The applicant states:

   a.  In 1983, a veteran's office representative did not indicate that this process was available.  The representative said nothing could be done.

   b.  The Department of Veterans Affairs (VA) has determined that he had the following conditions related to his military service:  post-traumatic stress disorder and major depression due to his demanding tour of duty as a cavalry lieutenant with responsibility for 50 men and 10 combat vehicles.  He was next assigned as a platoon leader in an armor battalion.  The leadership in his assigned battalion apparently did not trust the work of their noncommissioned officers.  As a result, he found himself doing not only his job, but also some of the work of his platoon and section sergeants.  He was required to work 15-20 hours each day which cut into his sleep/recovery time and made it difficult to devote time to learning his new assignment as well as additional new technology.

   c.  As the weeks progressed, the sleep deprivations and increased work load began to take its toll on his physical and mental health.  He was experiencing unending stress, was regularly vomiting, and developing the onset of stomach ulcers.  He sought medical attention and was given medication to remedy this.  He also began to see an Army psychologist on a weekly basis.  

   d.  After 4 to 5 hours of not knowing what else to do, he felt that he was out of options.  He ingested a bottle of prescription pills for the physical pain he was experiencing in his stomach.  Seconds after taking the pills he realized what a horrific mistake he had just made.  He immediately drove himself to Fort Carson, CO, for help.  His stomach was pumped and he was hospitalized in intensive care.  The next day he was visited by his battalion executive officer (XO) who stated, "If you think things were tough before, we are going to make then even tougher."  His intention was to cause harm.  It was also no secret the battalion commander loathed officers who did not graduate from West Point.  He was commissioned from California State University.  He did not experience this bias while serving as a successful cavalry lieutenant in South Korea.

   e.  When he was released from the hospital he went to see the brigade commander for help.  As a result, the brigade commander assigned him to the Commanding General's staff.  Unfortunately, the XO and battalion commander would not let-up with the harassment and they told him they were looking into a way to court-martial him.  They never offered ways to help him turn this around.  He believes their intentions were vengeful in creating further harm.  He was also never advised that he could seek legal counsel from anyone.

   f.  During his last month of service, the battalion leadership told him they would either proceed with a court-martial or he could just resign and receive an "honorable discharge."  He did not discover until days after he was discharged item 28 of his DD Form 214 negatively read, "Misconduct, moral or professional dereliction or in interest of National Security."  The narrative reason should read, "Administrative Discharge."

   g.  His battalion commander tried to cause further harm, after his hospitalization, with intimidation and then found a way to hurt him with his written negative comments for the rest of his working life.  He experienced this when he was 24 years of age and he has been paying for it for over 30 years.  There is not a day that goes by that he doesn't think of this.  He is requesting correction of this injustice and a change to the narrative to state "Administrative Discharge" to reflect the accuracy of the honorable discharge.

3.  The applicant provides his DD Form 214, a Decree Changing Name and order, state driver license, and a character reference letter.


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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant was appointed in the U.S. Army Reserve (USAR), as a second lieutenant, on 20 June 1980, from the Reserve Officers’ Training Corps.   

3.  He entered active duty on 23 September 1980.  He was completed the Armor Officer Basis Course and was awarded area of concentration 12A (armor officer). He served in Korea from 6 April 1981 through 10 April 1982.  He was promoted to first lieutenant (1LT) on 23 March 1982.  

4.  His records contain the following:

   a.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 5 August 1982, which shows he was admitted to the hospital after an overdose on 19 July 1982.  The form stated:

		(1)  The injury was sustained under unknown circumstances and patient was brought in by a friend.

		(2)  At 0730 hours on 19 July 1982, the applicant called his company commander to inform him that he thought he had a broken leg and wanted to go to the hospital to have it examined.  The company commander authorized the applicant to go to the hospital and instructed him to return to the company and report the results of the examination afterwards.  That evening it was reported the applicant was admitted to the Intensive Care Ward of the hospital.  On 20 July 1982, it was learned that the applicant was hospitalized for an intentional overdose of Donnatal and not for a leg injury as originally reported.

   b.  A DA Form 2456 (Disposition Form), dated 11 August 1982, wherein he requested to be released from active duty on 1 September 1982 or as soon as practicable thereafter.  He stated:
		(1)  He had been experiencing inability to cope with the stressful environment to which he was currently exposed.  Since his entry on active duty he had been using proper military channels to try to change that environment.  He had tried on numerous occasions to enter Flight School, but could not pass the medical examination.  He had also tried to receive a branch transfer to the Military Police Corps, but he had found that almost impossible to accomplish because he currently held a combat arms specialty.

		(2)  The stress was becoming a physical as well as an emotional problem. He was experiencing problems with his upper jaw that required him to wear a mouth guard at night to control the inflammation.  That would not change unless his environment changed.  He was also experiencing problems with his stomach. 

		(3)  His overdose required intensive care hospitalization.  His problems did not qualify him for a medical discharge because they have not yet reached an advanced stage.  He was considering his health and did not wish any further deterioration of his health before something was done.  He felt that it would be advantageous for himself and for the Army if he were to be released from active duty.

		(4)  On the same day, the applicant's commander recommended approval of the applicant's request.

   c.  A DA Form 3822-R (Report of Mental Status Evaluation) which shows he underwent a mental status evaluation on 12 August 1982 at the Community Health Activity.  The examining psychologist found he did not have any psychiatric condition which would warrant disposition through medical channels and administratively cleared the applicant for any administrative action deemed fit by the command.

   d.  A DA Form 3881, dated 18 August 1982, wherein he acknowledged being questioned for a Line of Duty investigation.

   e.  A DD Form 261 (Report of Investigation - Line of Duty (LOD) and Misconduct Status), dated 20 August 1982, which shows his injuries were incurred "Not in Line of Duty - Due to Own Misconduct." 

   f.  An LOD Status memorandum, dated 8 September 1982, wherein his commander was advised of the final LOD determination and that the applicant would be advised in detail of his right to appeal.


5.  On 23 November 1982, the applicant's company commander notified the applicant of the proposed action to separate him from the Army under the provisions of Army Regulation 635-100 (Officer Personnel), paragraphs 5-11 and 5-12, because of substandard performance of duty and misconduct, with an honorable discharge.  The battalion and brigade commanders recommended approval of the separation action.  The company commander stated the reasons for elimination were:

* failing to exercise necessary leadership or command expected of an officer of his grade by continually absenting himself for his place of duty, conducting required vehicle inventories, and ensuring needed repair parts were ordered
* visibly bursting into tears when asked about job-related deficiencies
* apathy, defective attitude, and an unwillingness to expend effort
* acts of misconduct by trying to break his leg with a rock and intentionally overdosing
* conduct unbecoming an officer by failing to perform the duties of a platoon leader and refusing to participate in downrange training

6.  On 23 November 1982, the applicant acknowledged receipt of the proposed separation action.  On the same date, the applicant's company commander stated the applicant indicated to him that he desired to get out of the Army.

7.  On 24 November 1982, the Commanding General, 4th Infantry Division, advised the applicant of approval of his elimination for further processing and advised the applicant of his rights.

8.  On 29 November 1982, the applicant acknowledged he understood the allegation and did not intend to refute them.  He stated that he did not oppose elimination and believed elimination would be in the best interest of all parties.

9.  On 1 February 1983, the Deputy Assistant Secretary of the Army approved the applicant's elimination under the provisions of Army Regulation 635-120 (Personnel Separations – Officer Resignations and Discharges), chapter 10, with the issuance of an honorable discharge.

10.  He was discharged accordingly in the rank of 1LT on 25 February 1983.  His DD Form 214 shows he was discharged in accordance with chapter 10 of Army Regulation 635-120.  He completed 2 years, 5 months, and 3 days of active service.  Item 26 (Separation Code) of his DD Form 214 shows the entry "JMC" and item 28 shows the entry "Misconduct, moral or professional dereliction or in interest of national security."  
11.  On 28 January 1992, the Army Discharge Review Board denied his appeal for change in the reason of his discharge.

12.  He provided copies of the following:

   a.  Two court decrees changing his middle name in June 2000.

   b.  A character reference letter, dated 10 February 2014, wherein the individual attested to knowing the applicant for over 34 years while serving in the military as well as his civilian capacity.  He stated that the applicant was model Army professional in behavior and attitude and he provided an exceptionally high degree of leadership and supervisory ability.  He requested favorable consideration of the applicant's request.

13.  Army Regulation 635-100, in effect at the time, provided the policy for the separation of USAR officers from active duty.  Paragraphs 5-11 and 5-12 provided for the separation for substandard performance (failure to exercise necessary leadership or command expected of an officer of his grade) and moral or professional dereliction (conduct unbecoming an officer).  The regulation provided that a resignation for the good of the service (chapter 10), when approved at Headquarters, Department of the Army, was normally accepted as being under other than honorable conditions.

14.  Army Regulation 635-120, in effect at the time, provided the policy for the separation of commissioned officers from active duty.  Chapter 10 of the regulation stated commissioned officers who had been recommended for elimination by a general court-martial convening authority may request discharge in lieu of elimination action.  

15.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  SPD code "JMC" is the correct code for Army officers separating under the provisions of chapter 10 of Army Regulation 635-120 by reason of misconduct – moral or professional dereliction. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant displayed substandard performance of duty (failing to exercise necessary leadership or command expected of an officer of his grade) and misconduct (trying to break his leg and intentionally overdosing).  Accordingly, his chain of command initiated elimination action against him.  The Deputy Assistant Secretary of the Army approved his elimination under the provisions of Army Regulation 635-120, chapter 10, with the issuance of an honorable discharge.  He was discharged accordingly in the rank of 1LT on 25 February 1983. 

2.  The evidence of record further shows he acknowledged the allegations, did not oppose his elimination, and believed it would be in the best interest of all parties.  Therefore, the evidence clearly shows he understood the reason for discharge.  His separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

3.  His discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

4.  His narrative reason for separation was assigned based on the fact that he was separated under the provisions of chapter 10 of Army Regulation 635-120 for misconduct-moral or professional dereliction.  The only valid narrative reason for separation permitted under that paragraph is "misconduct/ moral or professional dereliction" and the appropriate separation code associated with this discharge is "JMC" which is correctly shown on his DD Form 214.

5.  It is noted that the applicant's discharge was in fact an administrative discharge, as opposed to a punitive discharge that is normally authorized by a court-martial.  The applicant has failed to show the narrative reason for separation on his DD Form 214 is incorrect.  Therefore, he is not entitled to amendment of item 28 of his DD Form 214.

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)                                         AR20140004517



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ABCMR Record of Proceedings (cont)                                         AR20140004517



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