IN THE CASE OF:	  

		BOARD DATE:	   2 December 2014 

		DOCKET NUMBER:  AR20140004844 


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 his rank be restored to sergeant (SGT)/E-5.

2.  He states he was falsely given an Article 15.  He explains he was hospitalized due to mental illness.

3.  He provides:

* DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice)
* Department of Veterans Affairs (VA) Rating Decision 
* Medical documents
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Forms 4856 (Developmental Counseling Form), dated 22 August and 13 September 2002
* DA Form 31 (Request and Authority for Leave)

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.  The applicant's record shows he enlisted in the Regular Army on 8 July 1997.

3.  On 21 August 2002, the commander requested that the applicant receive a mental health evaluation.  He listed the applicant's refusal to make a permanent change of station (PCS) move due to emotional reasons, attachment to girlfriend/fiancé, as the reason for the evaluation.  

4.  On 26 August 2002, the applicant underwent a mental status evaluation where he was psychiatrically cleared for administrative separation.  The psychiatrist stated the applicant was diagnosed, per Diagnostic and Statistical Manual of Mental Disorders-IV, with attention deficit hyperactivity disorder.  He had no mental disease, defect, or derangement sufficient to warrant medical disposition under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) as outlined in Army Regulation 40-501 (Standards of Medical Fitness).  He further stated the applicant was not likely to be amenable to motivational enhancement or retraining.  Such additional stress could cause further deterioration and result in hospitalization, psychosis, suicide gestures or attempts, or other undesirable behavior.

5.  On 24 September 2002, nonjudicial punishment was imposed against him for willfully disobeying a lawful order from a commissioned officer.  In item 3 (Having been afforded the opportunity to consult with counsel, my decision are as follows:) of his DA Form 2627, he initialed the block indicating "I do not demand trial by court-martial and in the Article 15 proceedings."  Additionally, he initialed the blocks indicating that he requested a closed hearing, a person to speak on his behalf was not requested, and matters in defense, mitigation, and/or extenuation would be presented in person and were attached.  However, his record is void of any attached documents to his Article 15.  As part of his punishment, he was reduced from SGT/E-5 to specialist (SPC)/E-4 and to perform extra duty for 30 days.  The applicant initialed and signed the Article 15 indicating that he did not appeal. 

6.  On 24 July 2003, the applicant was honorably discharged from active duty and credited with 6 years and 7 days of active duty service.  Item 4a/4b (Grade, Rate, or Rank)/(Pay Grade), list his rank as SPC/E-4 with an effective date of pay grade of 24 September 2002.


7.  The applicant provides: 

   a.  A  DA Form 4856 that shows that on 22 August 2002 he was counseled by his commander and given a direct order to follow his PCS Orders 141-202, dated 1 May 2002.  These orders directed him to move from Tacoma, WA to Aberdeen Proving Ground, MD with a report date of 20 August 2002. 

	b.  A DA Form 31 that shows he was approved for a PCS leave from 26 July to 20 August 2002.  However, his record is void of an amendment to his PCS orders changing his report date to a later date. 

   c.  Medical documents that show he was admitted to the hospital on
20 August 2002 at 0156 hours.  His chief complaint was listed as depression, "transfer to Maryland tomorrow."  It appears he was discharged that same day.  The notes indicated that his girlfriend would transport him to Madigan Army Hospital, Mental Health Care. 

   d.  He also provided his VA Rating Decision that shows he received a
100 percent disability rating for Schizoaffective Disorder, Bipolar Type, effective
4 June 2009.   

DISCUSSION AND CONCLUSIONS:

1.  The applicant argues that his rank should be restored because the Article 15 was rendered in error.  He states he was hospitalized due to mental illness.

2.  The applicant provided a medical document that shows he was admitted to the hospital on 20 August 2002 at 0156 hours for depression due to PCSing the following day.  He was released the same day.  The following day the commander recommended that he undergo a mental health evaluation and listed the applicant's refusal to PCS due to his emotional attachment to his girlfriend/ fiancé as the reason for his refusal.  Therefore, his contention, in effect that he could not PCS due to his hospitalization, is not supported by the available evidence.

3.  On 22 August 2002, he was counseled by his commander and given a direct order to continue to move in accordance with his PCS orders.  On 26 August 2002, the applicant underwent a mental status evaluation and he was psychiatrically cleared for administrative separation. 



4.  The evidence of record shows that at the Article 15 hearing, he was given the opportunity to consult with counsel.  He initialed the Article 15 indicating that he did not demand trial by court-martial, a person to speak on his behalf, and matters in defense, mitigation, and/or extenuation would be presented in person and were attached.  However, there were no attached documents to his Article 15 in his record.  Additionally, he initialed and signed the Article 15 indicating that he did not appeal.

5.  There is no evidence and the applicant did not provide any to show the Article 15 was rendered unjustly or in error.  The evidence of record shows his report date to his new unit was 20 August 2002, and he was counseled accordingly.  Therefore, there is insufficient evidence on which to grant his request to restore his rank to SGT/E-5.

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)                                         AR20140004844



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ABCMR Record of Proceedings (cont)                                         AR20140004844



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