BOARD DATE:	  30 April 2015

		DOCKET NUMBER:  AR20140012942 


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 retired due to injuries incurred during active military service.

2.  The applicant states:

	a.  He was undergoing a medical evaluation board (MEB) when his rear detachment commander informed him that, since he was almost finished and would soon be separated, he should go home to Spring, Texas, under the condition that he keep in touch by phone.  Spring, Texas is about two and a half hours from Fort Hood.  A few weeks later, a police officer pulled up to his residence and, in front of family and friends, arrested him and put him in his car.  He was in confinement for approximately 2 months and no one would tell him why.  

	b.  The U.S. Army Criminal Investigation Command (CID) agents who picked him up said they didn't know why he was in confinement, but it sounded fishy to them.  The CID agents were charging him with theft, so he asked the new CID agent to show him the camera footage because he knew the area, but the CID agent just talked around it and never showed him.  The charges were later dropped after his dad called the III Corps Commanding General's office.  The Judge Advocate General (JAG) attorneys told him he could go home after he signed the chapter 12 [sic] paperwork, so missing his family, he signed it.  

	c.  He felt disgraced by his command and disgraced in front of family and friends.  He was always a top Soldier in his unit, from the 1st Armored Division to the 4th Infantry Division.  He never had any discipline problems.  He excelled in physical training and earned the German Armed Forces Badge for Weapons Proficiency (Schützenschnur); however, neither it nor his Presidential Unit Citation was added to his DD Form 214.  He was about to be promoted to the rank/grade of specialist (SPC)/E-4; instead, he was reduced to the rank/grade of private (PVT)/E-1.  His honor was stolen from him for reasons he will never know.   He heard through the grapevine that his former rear detachment commander received a slap on the wrist for telling him he could go home, which is unacceptable.

3.  The applicant provides no additional evidence in support of his request.

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 31 December 2003.  He completed his initial entry training and was awarded military occupational specialty (MOS) 13F (Fire Support Specialist).  After completing his initial entry training, he was assigned to Fort Hood, TX.

3.  He was reported by his unit as absent without leave, on or about 9 January 2006.

4.  His record contains a memorandum for record (MFR) from the Rear Detachment Commander, 7th Squadron, 10th U.S. Cavalry Regiment, 4th Infantry Division, dated 2 February 2005 [sic], in which the Commander states:

	a.  [Applicant] failed to report to for duty on Monday, 9 January 2006 and was officially declared AWOL the next morning when he still did not report for duty.  [Applicant] continues to be AWOL and will be dropped from the rolls (DFR) on 
8 February 2006, at which point a Federal warrant will be issued for his arrest.

	b.  At no time did he, the Rear Detachment Commander, give [Applicant] authorization, verbal or written, to go and live with his wife in Spring, Texas for an indefinite period beginning on 9 January 2006.  There is a well established policy concerning leaves and passes for Soldiers to take time off.  Specifically, any Soldier under his command who wishes to have time off during periods of duty needs to have the proper paperwork prepared, consisting of a request for leave form, a risk assessment prepared at the Army Safety website, written travel plans, and a leave and earnings statement (LES) to verify leave days available.  This paperwork must be approved by both the immediate supervisor and the Commander before the Soldier is given authorization to take leave.  Finally, the Soldier must sign out at the staff duty desk to officially begin his leave period.  [Applicant] was well aware of this process since he took 15 days of authorized leave during the Christmas holiday to spend time with his family.  At no time did [Applicant] present any of the paperwork discussed above to the Commander or any member of his chain of command.

	c.  [Applicant] was undergoing a doctor-directed MEB to determine whether or not he would be retained in the Army.  This process involves several different agencies and every person undergoing an MEB was briefed that the process could take anywhere from 3-6 months.  [Applicant]'s MEB was initiated on           4 0ctober 2005.  On 2 January 2006, the [Applicant]'s MEB counselor set up several appointments to investigate lower lumbar pain that [Applicant] had been having.  [Applicant] was aware of his requirement for follow-up appointments as he personally discussed it with him on 6 January 2006.  [Applicant] was aware that he could not take leave during periods when he was actively going to appointments in conjunction with his MEB, as they wanted him to get though the process as soon as possible.

	d.  COL F, the Head of the Allergy Department at Darnell Army Community Hospital at Fort Hood, assured him that since [Applicant] had been on the proper medication, there was no possibility of immediate death and his situation was quite stable and in control.

	e.  At every opportunity they worked with [Applicant] to allow him to spend time with his family.  His wife resided near Spring, Texas and he was stationed at Fort Hood, Texas, which was 200 miles away from his wife.  He was still a member of the rear detachment and in the service of the U.S. Army, and as such was required to report to duty and perform his military duties, which primarily consisted of being present and available for appointments concerning his MEB.

5.  His medical records are not available for review and the exact nature of the conditions for which he was referred to an MEB is unknown.

6.  He was dropped from the rolls of the Army on 8 February 2006.

7.  Court-martial charges were preferred against him on 8 February 2006, for violations of Articles 85 and 86 of the Uniform Code of Military Justice (UCMJ).  Specifically, he was charged with being AWOL since on or about 9 January 2006, and with deserting his unit by remaining AWOL.

8.  He was returned to military control on or about 2 March 2006.

9.  He consulted with legal counsel on 9 March 2006 and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 10, for the good of the service in lieu of trial by court-martial.

10.  In his request for discharge, he indicated he understood that by requesting discharge he was admitting guilt to the charge against him or to a lesser-included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State law.

11.  Court-martial charges were again preferred against him on 15 March 2006, for violations of Articles 86, 107, and 121 of the UCMJ.  Specifically, he was charged with:

* absenting himself from his unit from on or about 9 January 2006 to on or about 2 March 2006
* making a false official statement with intent to deceive on or about           
5 December 2005
* steal several vending machine items of a value of less than $50 between on or about 9 December 2005 and 12 December 2005

12.  The separation authority approved the applicant's request for discharge on or about 23 March 2006 and directed that he be reduced to the lowest enlisted grade and discharged under other than honorable conditions.

13.  The applicant was discharged from the Army on 28 March 2006.  The       DD Form 214 he was issued confirms he was discharged under other than honorable conditions following 2 years, 1 month, and 5 days of net active service and 51 days of lost time.

14.  The Army Discharge Review Board (ADRB) reviewed his discharge and determined it was both proper and equitable.  Thus, the ADRB denied his petition for a discharge upgrade on 19 March 2008.

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

   a. Paragraph 1-33 of the regulation in effect at the time provided that, except in separation actions under chapter 10 (emphasis added), disposition through medical channels takes precedence over administrative separation processing.  It further states disability processing is inappropriate in separation actions under chapter 10.

   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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

16.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (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 4-3 states that an enlisted member may not be referred for physical disability processing when action has been started that may result in an administrative separation with a characterization of service of under other than honorable conditions.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of his DD Form 214 to show he was medically retired due to injuries incurred during active military service was carefully considered; however, there is insufficient evidence to support his request.

2.  His record indicates he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  His discharge proceedings were conducted in accordance with law and regulations applicable at the time, with no indication of procedural errors that would have jeopardized his rights.  His characterization of service is commensurate with his overall record of military service.

3.  He contends his MEB was near completion; however, his medical records are not available for review and the exact nature of the conditions for which he was referred to an MEB is unknown.  Regardless, Army Regulation 635-200 provides that normally, disposition through medical channels (medical separations) takes precedence over administrative separation processing, except in cases involving administrative separation under chapter 10 (emphasis added).  It further provides that disability processing is inappropriate in separation actions under chapter 10.

4.  In view of the foregoing evidence, it appears the applicant's DD Form 214 accurately represents his separation and there is insufficient evidence to grant his request for 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)                                         AR20100008950



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