BOARD DATE:	  30 April 2015

		DOCKET NUMBER:  AR20140007509 


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 medically discharged for a "disability" instead of honorably discharged by reason of "misconduct, (serious offense)."

2.  The applicant states, in effect, he has lost everything due to a summary court-martial and subsequent discharge.  The correction of his record will provide the applicant separation benefits needed to pay off debts and support his family in Germany.  He further states the command unjustly and aggressively pursued a misconduct discharge to deny his medical board completion and disability separation.  The applicant believes this was initiated out of spite and was politically motivated for his actions in reporting the command for their lax handling of a restricted sexual assault report and their egregious abuse of power in the garrison dining facility (DFAC).  

3.  The applicant provides a substantial number of documents that were created throughout his career most notably pertaining to the events encompassing his request.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Although the applicant lists Counsel, they did not render a request on the applicant's behalf.

2.  Counsel provides no additional statement. 
3.  Counsel provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 22 February 2008.  He completed training and he was awarded military occupational specialty 92G (Food Service Operations).  Evidence shows the applicant served in Iraq for the period 30 November 2008 to 30 November 2009, and he was promoted to the rank/grade of sergeant/E-5 on 1 May 2010.

2.  Evidence shows the applicant received developmental counseling for:

* Failing to report to duty at the time prescribed (several instances)
* Failing to report to duty (several instances)
* Sub-par job performance as a noncommissioned officer
* Involvement with illegal drugs
* Failing to obey an order or regulation
* Failing to attend scheduled Army Substance Abuse Program training
* Failing to attend physical fitness training
* Revocation of pass privileges
* Submitting a false official statement
* Failure to pay a just debt
* Willful disobedience to a superior commissioned officer

3.  On 27 September 2012, the applicant was tried by a summary court-martial and he was found guilty of nine of 14 specifications of Charge I, Article 86, Failure to Appear at Place of Duty, and was found guilty of Charge II and its Specification, Failure to Obey the Order of a Superior Commissioned Officer.  He was sentenced to be reduced in rank/grade to specialist/E-4.  On 16 October 2012, the promulgating order was signed and the sentence was approved as adjudged.

4.  On 5 December 2012, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, for misconduct - commission of a serious offense.  The specific reason for the proposed action was that he was found guilty by summary court-martial of violating nine counts of Article 86 - Failure to Report to Appointed Place of Duty and one count of Article 92 - Failure to Obey an Other Lawful Order.  His commander recommended the issuance of an under honorable conditions (general) discharge.

5.  On 5 December 2012, the applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel on             6 December 2012, and 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 that were available to him.  He acknowledged he understood that:

	a.  He could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.

	b.  He could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge.

	c.  He indicated he submitted a statement in his own behalf; however, a statement has not been found in his record for review.

6.  Subsequent to his acknowledgement, the applicant's immediate commander initiated separation action against him in accordance with Army Regulation      635-200, paragraph 14-12c, for misconduct.  The chain of command recommended approval of the discharge action.

7.  The applicant and counsel provide a DA Form 7652 (Physical Disability Evaluation System (PDES) Commander's Performance and Function Statement), dated 14 January 2013, in which his immediate commander stated the applicant was removed from his position in the DFAC at the request of his supervisor and currently performed administrative duties in the company headquarters.  He stated the applicant should be medically retained and the administrative separation for misconduct should be allowed to continue.  He further stated the applicant's physical issues have in no way restricted his ability to act as a cook and to effectively perform duties in the DFAC.  

8.  The applicant and counsel provide a DA Form 3947 (Medical Evaluation Board (MEB) Proceedings), dated 17 April 2013, which shows an MEB convened to evaluate the applicant's medical condition.  Item 12 of this form shows the applicant presented views on his behalf.  After consideration of clinical records, laboratory findings, and physical examination, the MEB found that the applicant had the following three medical conditions/defects which were all incurred while he was entitled to base pay and did not exist prior to service:

	a.  Bilateral patellofemoral chondromalacia (Per VA-bilateral knee surgery).  This condition did not meet the medical retention standards of Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-14e.

	b.  Bilateral pes planus right greater than left.  This condition did not meet the medical retention standards of Army Regulation 40-501, paragraph 3-13b(2).

	c.  Major depressive disorder and post-traumatic stress disorder (PTSD) - Recurrent.  This condition did not meet the medical retention standards of Army Regulation 40-501, paragraph 3-32a, b, and c.

The applicant was recommended for referral to a Physical Evaluation Board (PEB) for further adjudication.  The findings and recommendation of the MEB were approved on 17 April 2013.
	
9.  On 16 May 2013, after having carefully considered and reviewed the MEB proceedings, the administrative separation board proceedings, and recommendations of the chain of command, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct - commission of a serious offense with an honorable characterization of service.  In doing so, the separation authority stated that he did not find the applicant's medical conditions were the direct or substantial contributing causes of the conduct which led to the recommendation for administrative elimination, or that other circumstances of the applicant's case warranted disability processing instead of further processing for administrative separation.

10.  On 10 June 2013, the applicant was accordingly discharged.  His DD Form 214 shows he was discharged under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct (serious offense) with an honorable characterization of service.  He completed 5 years, 3 months, and 19 days of net active service this period.  

11.  The applicant provides a certification from a medical doctor in Germany, dated 28 February 2014, who states the applicant has been under continuous treatment in his practice for recurrent depressive disorder and PTSD since        21 October 2013.

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 consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally 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.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army 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 contains guidance on the standards of unfitness because of physical disability.  It states, in pertinent part, 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 Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.  Once an MEB determines the Soldier fails medical retention standards, the Soldier is referred to a PEB.  

14.  Army Regulation 635-40 also provides that an enlisted Soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions.  The commander exercising general court-martial jurisdiction over the Soldier may abate the administrative separation.  This authority may not be delegated.  A copy of the decision, signed by the General Court-Martial Convening Authority (GCMCA), must be forwarded with the disability case file to the PEB.  A case file may be referred in this way if the GCMCA finds the following:

	a.  The disability is the cause, or a substantial contributing cause, of the misconduct that might result in a discharge under other than honorable conditions.

	b.  Other circumstances warrant disability processing instead of alternate administrative separation.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to correct his DD Form 214 to show he was medically discharged for a "disability" instead of honorably discharged by reason of "misconduct, (serious offense)" has been carefully examined; however, the evidence of record does not support the applicant's request.

2.  The evidence of record shows the applicant displayed a pattern of unsatisfactory performance and did not respond to counseling by his chain of command regarding his responsibility to meet Army standards.  Ultimately, he was tried and found guilty by a summary court-martial of violating nine counts of Article 86 - Failure to Report to Appointed Place of Duty and one count of Article 92 - Failure to Obey an Other Lawful Order.  

3.  Accordingly, his immediate commander initiated separation action against him.  The evidence further shows his separation processing was accomplished in compliance with applicable regulations and there is no evidence of procedural errors that would have jeopardized his rights.  

4.  The applicant's contentions are noted; however, there is insufficient evidence to show the applicant was ever physically unable to perform his duties or that his command unjustly and aggressively pursued a misconduct discharge to deny completion of his MEB and a disability separation based on their handling of a restricted sexual assault report.  

5.  In his capacity as the GCMCA and prior to making a decision, the separation authority reviewed the proceedings for the MEB and determined that none of the applicant's listed ailments were a direct or substantial cause of his misconduct.  The applicant and/or counsel have not shown that the separation authority was wrong in making this conclusion.

6.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20140007509





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ABCMR Record of Proceedings (cont)                                         AR20140007509



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