IN THE CASE OF:    

		BOARD DATE:  9 April 2015	  

		DOCKET NUMBER:  AR20140009359 


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, in effect, an upgrade of his general discharge (GD) under honorable conditions to an honorable discharge (HD).

2.  The applicant states:

   a.  He was undergoing a review by the medical evaluation board (MEB) when his command decided to administratively discharge him for patterns of misconduct.
   
   b.  His command did not allow for completion of the MEB process prior to his discharge and therefore did not determine the best avenue for his discharge as required in accordance with paragraphs 1-33(a) and (b), Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).
   
   c.  The Army Discharge Review Board (ADRB) previously denied his request for an upgrade of his GD indicating the command has the authority to decide whether to discharge a Soldier for misconduct or based on the results of the MEB.  The violation of the Army Regulation 635-200, paragraphs 1-33(a) and (b) was silent in its decision. 

   d.  The Department of Veteran Affairs (VA) granted him a 90 percent disability rating for the same medical conditions that formed the basis for his MEB.
   
   e.  He indicated he desired to appear before the Board in his application. 

3.  The applicant provides:

* self-authored statement
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* memorandum dated 9 December 2009
* two DD Forms 3349 (Physical Profile)
* extract of Army Regulation 635-200 
* ADRB letter with enclosures
* VA Rating Decision

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  enlisted in the Regular Army on 18 June 2008.  He was trained in and awarded military occupational specialty 88M (Motor Transport Operator).

3.  He accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following dates for the reasons indicated:

* 23 June 2009, for failing to go at the time prescribed to his appointed place of duty
* 7 August 2009, for being disrespectful in deportment and language toward a superior noncommissioned officer (NCO), disobeying a lawful order, resisting apprehension, and being drunk and disorderly

4.  On 9 December 2009, the applicant underwent a mental status evaluation and the results showed he demonstrated:

* normal behavior and thought content
* he was fully alert and oriented
* unremarkable mood or affect
* a clear thinking process
* good memory
* he had the mental capacity to understand and participate in separation proceedings
* he was mentally responsible

5.  The mental status evaluation also showed:

	a.  He did not currently meet the criteria for mood disorder, thought disorder, traumatic brain injury, or post-traumatic stress disorder.  The applicant denied obsessive and compulsive behavior.

	b.  His active psychiatric diagnoses were the following:

* Axis I:  adjustment disorder with anxiety and depressed mood, alcohol abuse
* Axis II:  no diagnosis
* Axis III:  otitis media, both ears

   c.  The applicant met retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness), and there was no psychiatric disease or defect that warranted disposition through medical channels.  He was cleared for any administrative actions deemed appropriate by command, such as separation under chapter 14 of Army Regulation 635-200.

6.  On 9 December 2009, the applicant was issued a temporary physical profile for bilateral feet chronic nerve pain by a podiatrist.  The authorizing physician also issued a memorandum, wherein he indicated the applicant did not meet medical retention standards in accordance with AR 40-501 and recommended initiation of an MEB. 

7.  On 10 December 2009, a different physician (brigade surgeon) issued the applicant a second temporary profile for "bilateral foot pain s/p surgeries in Aug 09, knee pain, shoulder pain, and hypertension."  On 15 December 2009, this same physician issued a statement to the applicant's commander indicating the applicant:

* accumulated 3 "no-shows" for medical appointments in the past 6 months 
* for all future appointments he would require an NCO escort due to his history of failed appointments
* frequently just hangs around the clinic without doing anything
* is a malingerer who definitely abuses the medical system
* has several medical problems, most of which have not been fully treated, which means an MEB is not appropriate at this time
* very much wants an MEB because he thinks it will increase his disability 
* should only see himself or another designated medical officer (or case managers) for medical care

8.  On 22 February 2010, the applicant's commander informed him of his intent to separate him under the provisions of Army Regulation 635-200, paragraph 14-12b, for patterns of misconduct.  The commander cited the misconduct indicated in the applicant's two records of NJP as the basis for his recommended elimination action.  The commander informed the applicant of his right to consult with legal counsel, to obtain copies of documents pertaining to the separation action, to request a hearing before an administrative board (if accrued 6 or more years of active or Reserve service), to be represented by either or both military and civilian counsel, to waive his rights, and/or to submit a request for a conditional waiver of any rights.

9.  On 24 February 2010, the applicant consulted with legal counsel.  After being advised of the basis for the contemplated separation action, its effects, and the rights available to him, he:

* indicated his understanding that he was not entitled to consideration of his case by an administrative separation board because he had less than 6 years of service and was not being considered for an under other than honorable (UOTHC) discharge
* requested representation by counsel
* elected to submit statements in his own behalf (this statement is not included in his official military personnel file (OMPF))

10.  On 2 March 2010, the separation authority waived further counseling and rehabilitative requirements for the applicant, approved the administrative separation action, and directed the issuance of a GD.  On 17 March 2010, the applicant was discharged accordingly.

11.  The applicant's DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of patterns of misconduct.  It also shows he completed 1 year and 9 months of creditable active service.

12.  On 20 July 2011, after having carefully reviewed the applicant’s record and the issues he presented, the ADRB concluded the applicant’s discharge was proper and equitable, and voted to deny his request for an upgrade.

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

   a.  Paragraph 1-33(a) provides for disposition through medical channels.  It states that except in separation actions under chapter 10 and as provided in paragraph 1-33b, disposition through medical channels takes precedence over administrative separation processing.  When the medical treatment facility (MTF) commander or attending medical officer determines that a Soldier being processed for administrative separation under chapters 7 (see sec IV), or 14, does not meet the medical fitness standards for retention (see AR 40-501, chapter 3), he/she will refer the Soldier to a MEB in accordance with AR 40-400 (Patient Administration). The administrative separation proceedings will continue, but final action by the separation authority will not be taken pending the results of the MEB.

   b.  Chapter 14 establishes policy and prescribes procedures for separating Soldiers for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  The regulation specifies that action will be taken to separate a Soldier for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  The separation authority may issue an HD or GD if warranted by the overall record of service; however, a discharge UOTHC is normally considered appropriate for Soldiers separated under these provisions of the regulation.

   c.  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 Soldier'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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, it is concluded that the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, it is concluded that a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

2.  The applicant contends his GD should be upgraded to an HD because his command separated him from service prior to completion of his MEB.  While the evidence of record shows the applicant was recommended for an MEB on 9 December 2009, it fails to shows this recommendation was approved.  In fact, six days later on 15 December 2009, one of the applicant's physicians determined an MEB was not appropriate at that time because the applicant had not been fully treated for several medical problems.  Evidence also confirms that the applicant hindered his medical treatment by not presenting himself at his appointments when scheduled.  Lacking any information to confirm the applicant entered the Army Physical Disability Evaluation System, his claim lacks merit.

3.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulations.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  His overall record of service was considered and resulted in the issuance of a GD instead of the discharge UOTHC that is normally appropriate for members separated for misconduct.  The applicant's disciplinary history clearly diminished the overall quality of his service below that meriting a fully honorable discharge.  Accordingly, there is no basis upon which 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)                                         AR20140009359



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ABCMR Record of Proceedings (cont)                                         AR20140009359



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