BOARD DATE:	  27 January 2015

		DOCKET NUMBER:  AR20140008704 


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 an upgrade of his discharge under other than honorable conditions.

2.  The applicant states his rights were violated by the harassment he endured during his illness/distress and service as a Soldier.

3.  The applicant provides:

* self-authored letter, dated 28 February 2014
* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 3 March 2014
* health records
* DA Forms 3349 (Physical Profile)
* DA Forms 4856 (Developmental Counseling Form)
* National Guard Bureau Form 22 (Report of Separation and Record of Service)
* DA Form 705 (Army Physical Fitness Test (APFT) Scorecard)
* letters of recommendation/support
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Army Discharge Review Board (ADRB) proceedings



CONSIDERATION OF EVIDENCE:

1.  Having prior service in the Army National Guard, the applicant enlisted in the Regular Army on 16 February 2010 for 3 years.  He completed his training and was awarded military occupational specialty (MOS) 92R (parachute rigger).

2.  He provided the following DA Forms 3349 which show he was issued temporary physical profiles for:

* chest pain, possibly cardiac, on 29 October 2010
* severe low back pain on 14 September 2011
* chronic low back pain on 23 February 2012

3.  On 23 February 2012, charges were preferred against him for:

* making false official statements (five specifications)
* malingering
* unauthorized wearing of badges, ribbons, and decorations
* wrongfully impersonating a noncommissioned officer

4.  On 28 February 2012, he consulted with counsel and requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He acknowledged that by submitting his request for discharge he was guilty of a charge against him that authorized the imposition of a bad conduct or dishonorable discharge.  He indicated he understood he might be discharged under conditions other than honorable and given a discharge under other than honorable conditions, he might be ineligible for many or all benefits administered by the Department of Veterans Affairs, he might be deprived of many or all Army benefits, and he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He acknowledged he might expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  He elected not to make a statement in his own behalf.

5.  On 7 March 2012, the separation authority approved the applicant's voluntary request for discharge and directed the issuance of a discharge under other than honorable conditions.

6.  On 3 April 2012, he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He completed 2 years, 1 month, and 18 days of creditable active service.  His service was characterized as under other than honorable conditions.

7.  In February 2013, the ADRB denied his request for a discharge upgrade.

8.  There is no medical evidence of record that shows he was diagnosed with post-traumatic stress disorder (PTSD) prior to his discharge on 3 April 2012.

9.  He provided a letter, dated 28 February 2014, wherein he states:

	a.  He served in the Army National Guard from 2004 to 2010 and was honorably discharged.  He deployed to Iraq twice and during his deployments he sustained physical and psychological injuries.  He was diagnosed with PTSD.

	b.  He enlisted in the Regular Army in February 2010 as a parachute rigger.  He was chosen to attend the Pathfinder course, but he declined.  He felt the course was too long and prevented him from immediately relocating his wife from an unsafe environment.

	c.  In July 2010, he received orders to Fort Bragg, NC, as a parachute rigger.  The relationship with his leadership and battle buddies was tolerable until the old injuries sustained in the ARNG resurfaced.

	d.  In August 2010 after he finished physical training, he and his wife dropped their son off at school.  On their way back, he had symptoms identified with having a heart attack.  At his wife's request, he drove to Cape Fear Hospital, Wilmington, NC, and was hospitalized.  Initially, his company was responsive to his situation and supported him for a short period of time.  However, he became more depressed, withdrawn, and started smoking.  He could not perform at the level he once enjoyed or meet the standards and expectations of his team and leadership.

	e.  In September 2010, he received a new platoon leader who started to give him counseling statements.  The first counseling statement was given when he returned from a verified American Red Cross emergency leave.  He requested a meeting with the commander through her open door policy to address this issue, and when no action was taken after several requests by his platoon sergeant, he proceeded and was written up for failure to use the chain of command.

	f.  The disparate treatment continued by his unit and the name calling never ceased.  Notwithstanding being ostracized and having a permanent physical profile he attempted to prove he was still a team player and an asset.  He violated his physical profile and injured his back and hip by lifting pallets in excess of 200-250 pounds.  He was subjected to sexual assault (unwanted touching/rubbing his back) by a female specialist co-worker.

	g.  In October 2011, he requested approval for late call due to his medication regime, but he was denied.  He expressed suicidal ideations and attempted to commit suicide.  His wife intervened and he was hospitalized on 20 October 2011.  Shortly after his admittance, his platoon sergeant appeared and spoke with his nurse.  The nurse informed him he would be discharged from the hospital and released to his duty section, denying him the opportunity to obtain medical and mental health treatment.  The nurse stated it was a military issue.  Upon his discharge, he was held in the day room area under constant supervision for 2 days.  He does not believe this type of treatment to be humane or compassionate.

	h.  It was at this time he started to notice a change in his command's support and behavior.  His battle buddies became insensitive to his situation and constantly antagonized and humiliated him.  He was also harassed.

	i.  He was counseled for having too many medical appointments (chiropractor, pain management, fertility doctor, and his daughter's psychiatric appointments).

	j.  In November 2011, he received counseling for violating his physical profile in an effort to have a passing APFT on file to change his MOS from 92R (parachute rigger) to 68W (combat journalist).  This was a poor decision on his part because he wanted to reclassify and stay in the Army while performing a less physically-demanding job.  He was also barred for being overweight.  However, because he met standards, the bar code was lifted in November 2011.  The APFT bar code was lifted as well.  Despite the physical profile, the leadership scheduled him to take the APFT and he passed.  He chose to participate in the APFT so he could finish the reclassification requirements to change his MOS and change units.

	k.  In March 2012, he was recommended for a medical review board by the battalion surgeon, psychiatrist, psychologist, chiropractor, and primary care manager.  He received approval because of his permanent physical profile and their recommendations.

	l.  In March 2012, charges were preferred against him for malingering and faking injuries.

	m.  In October 2012, he initiated a request to change the character of his discharge through a Veterans Service Officer and was disapproved based on his inability to establish the burden of proof.

	n.  He believes the characterization of his discharge is in error.  The work environment he was subjected to would be considered intimidating, hostile, and offensive by any reasonable person.  He admits to making poor decisions based on the presented circumstances.  His medical appointments and prescribed medications confirm he will continue to have medical issues that are directly connected to his military service and dispel any belief he was faking his illness.  He cannot work due to a traumatic brain injury, PTSD, herniated disk, curved spine, groin nerve condition, which are all service related.

	o.  Currently, he and his family are homeless.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

	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.

	c.  Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his rights were violated by the harassment he endured.  However, there is no evidence of record and he provided no evidence showing he was the victim of harassment.

2.  Although he contends he had a permanent physical profile, there is no evidence showing he was issued a permanent physical profile at any time for any medical condition.  The DA Forms 3349 he provided were for temporary physical profiles.

3.  His voluntary request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns and he elected not to do so.

4.  Although he believes the character of his discharge is in error, the type of discharge directed and the reason for his discharge were appropriate considering all the facts of the case.

5.  His record of service included serious offenses for which court-martial charges were preferred against him.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.

6.  In view of the foregoing information, there is an insufficient evidentiary basis for granting the applicant an upgrade of his discharge.

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)                                         AR20140008704



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ABCMR Record of Proceedings (cont)                                         AR20140008704



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