IN THE CASE OF:    

		BOARD DATE:  31 March 2015  	  

		DOCKET NUMBER:  AR20140013079 


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 administrative discharge to show he was medically discharged.

2.  The applicant states that he was diagnosed with post-traumatic stress disorder (PTSD), traumatic brain injury (TBI), and numerous other medical conditions as a result of combat in Operation Iraqi Freedom (OIF) and Operation Enduring Freedom (OEF).

   a.  He was being processed for a Medical Evaluation Board (MEB) when he was recommended for a discharge under the provisions of (UP) Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), Chapter 14 (Separation for Misconduct) for alleged child abuse.

   b.  The chapter 14 discharge was denied and his unit was informed that his medical processing should continue.

   c.  His unit then preferred charges against him for violation of the Uniform Code of Military Justice (UCMJ).  He was told that he would be recommended for court-martial due the allegations of child abuse that would likely result in his conviction with confinement.

   d.  He was offered an administrative discharge UP AR 635-200, Chapter 10 (Discharge in Lieu of Trial by Court-Martial), which he accepted.  However, his discharge was not proper, he was not afforded legal representation, and he did not receive due process.  He adds that he was not treated with the same regard as any other Soldier would have been treated regardless of rank or position.  In addition, his service-connected medical conditions were not properly addressed.  As a result of his administrative discharge he was deprived of veterans' benefits.

3.  The applicant provides copies of a letter from his spouse, his administrative separation packet, DD Form 214 (Certificate of Release or Discharge from Active Duty), and medical records.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) on 18 January 2007 for a period of 5 years.  He was awarded military occupational specialty 31B (Military Police).  He served in Iraq from 11 November 2007 through 29 January 2009.

   a.  He reenlisted in the RA on 17 December 2009 for a period of 3 years.
He served in Afghanistan from 20 October 2010 through 5 September 2011.

   b.  He reenlisted in the RA on 30 March 2012 for a period of 4 years.  He was promoted to sergeant (E-5) on 1 May 2012.

2.  A review of the applicant's Official Military Personnel File revealed that an Agent's Investigation Report is filed as part of the applicant's separation packet.  It revealed, in pertinent part, two DA Forms 2823 (Sworn Statements) made by the applicant at approximately 1447 hours and 1928 hours, 3 May 2013.
(Explanation for conversation:  Q - question by agent; A - answer by applicant.)

   a.  In the first sworn statement the applicant wrote, "Jonathan [sister-in-law's son] and Leah [applicant's daughter] started to fight and they hit each other.  I told Leah to stop and go to bed and I also told Jonathan too and he wouldn't.  I then put him in timeout and made him do exercises.  He did push-ups and sit-ups for about 5 minutes.  He then went to bed."

* Q:  "Did you strike Jonathan that night when he hit your daughter?"
* A:  "No."
* Q:  "Have you ever stuck Jonathan with your hand or any object"?
* A:  "No."

   b.  In the second sworn statement the applicant stated, "I was upset and made him do exercises and I also spanked him.  After 5 minutes I sent him back to his room to go to sleep."

* Q:  "What did you spank him with?"
* A:  "My hand and a belt."
* Q:  "How many times did you spank him with your hand?"
* A:  "Maybe 4 or 5 times."
* Q:  "How many times did you spank him with the belt?"
* A:  "Twice."

3.  On 5 September 2013, court-martial charges were preferred against the applicant for violation of the UCMJ –

* Article 128 (Assault), for unlawfully and repeatedly striking a child under the age of 16 years on the buttocks and lower back with a belt and his hand on 29 March 2013
* Article 107 (False official statements), for, with intent to deceive, making a false official statement to a special agent, on 3 May 2013, which statement was then known to be false

4.  On 1 October 2013, after consulting with legal counsel, the applicant offered to submit himself to Article 15, UCMJ proceedings and waive his right to trial by court-martial, if the Article 15, UCMJ proceedings were solely for the adjudication of the alleged violation of Article 92 (Failure to obey order or regulation), UCMJ, as stated below:

In that Sergeant (E-5) [applicant's name], U.S. Army, did, at or near Fort Drum, New York, on or about 3 May 2013, with intent to deceive, make to Special Agent D____ C____, an official statement, to wit:  "I have never struck [child's name] with my hand or any object," or words to that effect, which statement was totally false, and then known by the said Sergeant [applicant's name] to be false.

5.  On 2 December 2013, the Commander, 10th Sustainment Brigade, Fort Drum, NY, rejected the applicant's offer.

6.  On 4 November 2013, the Commander, 10th Sustainment Brigade, Fort Drum, NY, the General Court-Martial Convening Authority (GCMCA), ordered the Commander, U.S. Army Medical Department Activity (MEDDAC), Fort Drum, to conduct an inquiry into the mental responsibility and the mental capacity of the applicant in accordance with Rules of Courts-Martial 706.  The order provided guidance on the reasons for the examination (i.e., treatment for Behavioral Health diagnoses for Anxiety, Insomnia, Major Depression Disorder, Substance Abuse, and PTSD), composition of the board, required findings as to the mental capacity and mental responsibility of the applicant, materials to consider, and reporting procedures.


7.  A DA Form 3822 (Report of Mental Status Evaluation), completed on 
5 December 2013, shows –

* from a behavioral health standpoint, the applicant was unfit for duty due to a serious mental condition that was not likely to resolve within 1 year
* the mental status examination findings show –

* no obvious cognitive impairments
* cooperative behavior
* normal perceptions
* unlikely to be impulsive
* not dangerous

* the impression was the applicant could understand and participate in administrative proceedings and could appreciate the difference between right and wrong
* Diagnoses –

* Axis I:  PTSD
* Axis II:  Deferred
* Axis III:   See AHLTA [Armed Forces Health Longitudinal Technology Application] notes

* PTSD Screening:  Score:  4/4, Positive
* Mild TBI (mTBI) Screening:  Score:  2/2, Positive
* Remarks:  "SM [Service Member] was screened for PTSD and TBI.  SM reported continued improvement of PTSD symptoms over course of treatment.  SM was cleared by the TBI clinic."
* Additional Comments:  "SM does not meet medical retention standards per AR 40-501 [Standards of Medical Fitness]; however, his diagnosis of PTSD and mTBI did not contribute to his current legal problems.  SM is psychiatrically cleared for administrative separation.  SM is mentally responsible for his behavior, can distinguish right from wrong, and possesses sufficient mental capacity to participate in administrative or judicial proceedings as deemed appropriate by command." 

8.  On 20 November 2013, the applicant consulted with legal counsel and he voluntarily requested discharge in lieu of trial by court-martial.  The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge.

   a.  He acknowledged that he understood the elements of the offenses charged and that he was guilty of the charges against him, or of lesser included offenses therein contained, which also authorized the imposition of a bad conduct or dishonorable discharge.

   b.  He was advised that he might be discharged under conditions other than honorable, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Department of Veterans Affairs, that he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he might expect to encounter substantial prejudice in civilian life if he was given an under other than honorable conditions discharge.

	c.  He was also advised that he could submit any statements he desired in his own behalf and he indicated that statements in his own behalf were submitted with his request.

	d.  The applicant and his counsel placed their signatures on the document.

9.  His immediate and intermediate commanders recommended approval of the applicant's request for discharge with the issuance of an under other than honorable conditions discharge.

10.  On 10 December 2013, the separation authority approved the applicant's request for discharge, ordered his reduction to the rank of private (E-1), and directed that his service be characterized as under other than honorable conditions.

11.  The applicant's DD Form 214 shows he entered active duty this period on
18 January 2007 and he was discharged on 14 January 2014, UP AR 635-200, chapter 10, in lieu of trial by court-martial with an under other than honorable conditions discharge.

	a.  He completed 6 years, 11 months, and 27 days of net active service this period that included 2 years, 1 month, and 5 days of foreign service.

	b.  Item 18 (Remarks) shows the applicant had honorable active service from 18 January 2007 through 16 December 2009.

12.  A review of the applicant's military personnel records failed to reveal any evidence that separation proceedings were initiated UP AR 635-200, chapter 14 or that the applicant applied to the Army Discharge Review Board for review of his discharge.


13.  A review of the applicant's military service records failed to reveal any 
evidence that the applicant was referred to the Physical Disability Evaluation System (PDES) for an MEB or a Physical Evaluation Board (PEB).

14.  In connection with the processing of this case, the U.S. Army Physical Disability Agency (PDA), Arlington, VA, was asked to verify information relevant to the applicant's PDES processing.  On 18 March 2015, a PDA official indicated the PDA did not have any record of the applicant going through the PDES process.

15.  In support of his application the applicant provides the following documents.

   a.  An undated letter from Mrs. T____ G____, the applicant's spouse.  She provides a summary of the events and circumstances that occurred beginning in late March 2013 and that subsequently resulted in the applicant's discharge.  

    	(1)  She states, in pertinent part, that after her sister's son had punched her daughter in the face, she yelled at him about the incident, and he began to cry and ask for his mother.  She contacted her sister (the child's mother) who sent a text message back telling her that the applicant could spank her child.  Her sister then called her and she heard her sister's boyfriend yell into the phone, "When I get there tomorrow morning, his [the child's] a__ is mine."  Then her sister told her to have the applicant spank her child.  She wrote, "At about 10:30 PM, [applicant] brought [the child] into the hallway (at the top of stairs) put him over his knee and tapped him with the belt (cloth belt) about 3 times and made him do a few pushups and wall sits for about 10 minutes and sent him to bed."

    	(2)  She also states that when her sister and boyfriend arrived the following morning (30 March 2013), she "heard [the child] screaming at the top of his lungs, 'Please, stop'."  She ran to her basement and past her sister sitting on the stairs.  Her sister said, "Well, maybe this will teach him not to hit a girl."  She added that, "By the time I got to my basement, [the boyfriend and child] came walking out of one of the rooms.  When [she] asked [the child, he] said he was okay."

    	(3)  She adds that she later learned her sister's boyfriend had molested her three daughters and her sister's daughter and son in February 2013.

    	(4)  She states that officials investigating the allegations against her husband refused to take her statement because they said she was only defending him.  She briefly describes the applicant's separation and medical processing, adding that the applicant was coerced into his chapter 10 discharge.

   b.  His military medical records that span the period of his military service from enlistment through discharge show his entrance examination and medical history; reported symptoms, medical conditions, care, treatment, and prescribed medications during his military service; and his separation medical examination.

    	(1)  A DD Form 2697 (Report of Medical Examination), prepared by the examining physician on 28 August 2013 to document the applicant's separation examination, shows the applicant was not qualified for service.

    	(2)  A review of the medical records failed to reveal that he was referred to an MEB or PEB.

16.  AR 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 1 (General), section VI (Medical Processing), paragraph 1-33 (Disposition through Medical Channels), provides, in pertinent part, except in separation actions under chapter 10, disposition through medical channels takes precedence over administrative separation processing.

	b.  Chapter 3 (Character of Service/Description of Separation) provides in:

    	(1)  paragraph 3-7a 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; and

    	(2)  paragraph 3-7b 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.

	c.  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.


17.  Manual for Courts-Martial, United States (2012 Edition), Part IV (Punitive Articles), lists:

   a.  Article 107 (False Official Statements) and shows, in pertinent part, any person subject to this chapter who, with intent to deceive, signs any false record, return, regulation, order, or other official document, knowing it to be false, or makes any other false official statement knowing it to be false, shall be punished as a court-martial may direct.

   b.  Article 128 (Assault) and shows, in pertinent part, any person subject to this chapter who attempts or offers with unlawful force or violence to do bodily harm to another person, whether or not the attempt or offer is consummated, is guilty of assault and shall be punished as a court-martial may direct.

18.  AR 40-501, chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement) provides information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures.

19.  AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) sets forth policies, responsibilities, and procedures in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Chapter 4 (Procedures), section I (Eligibility for Disability Evaluation), paragraph 4-3 (Enlisted Soldiers subject to administrative separation), provides, in pertinent part, 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.

20.  AR 635-5 (Personnel Separations - Separation Documents) states that the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty and is prepared for Soldiers upon release from active duty, discharge, retirement, or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.

	a.  Chapter 2 contains guidance on the preparation of the DD Form 214.  It states the source documents for entering information on the DD Form 214 will be the Enlisted Record Brief, separation approval authority documentation, separation orders, or any other document authorized for filing in the Official Military Personnel File.

	b.  Paragraph 2-4 (Completing the DD Form 214) contains item-by-item instructions for completing the DD Form 214.  It states for item 18, use this block for entries required by Headquarters, Department of the Army, for which a separate block is not available and for completing entries too long for their blocks.

    	(1)  For enlisted Soldiers with more than one enlistment period during the time covered by the DD Form 214, enter the statement "IMMEDIATE REENLISTMENTS THIS PERIOD (specify dates)."

    	(2 )  However, for Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except honorable, enter the statement "CONTINUOUS HONORABLE ACTIVE SERVICE FROM (first day of service which DD Form 214 was not issued) UNTIL (date before commencement of current enlistment)."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his under other than honorable conditions administrative discharge should be corrected to show he was honorably discharged based on permanent disability because his medical conditions were not properly addressed, his administrative discharge was improper, he did not receive due process, and he was not treated with the same regard as any other Soldier.

2.  The evidence of record shows:

   a.  On 5 September 2013,  court-martial charges were preferred against the applicant.

   b.  On 1 October 2013, after consulting with legal counsel, the applicant offered to submit himself to Article 15, UCMJ proceedings and waive his right to trial by court-martial, if the Article 15 proceedings were for the adjudication of the alleged violation of the UCMJ.  However, the commander rejected the applicant's offer.

   c.  On 4 November 2013, the GCMCA ordered the Commander, MEDDAC, Fort Drum to conduct an inquiry into the mental responsibility and the mental capacity of the applicant in accordance with Rules of Courts-Martial 706.  After a thorough review of the applicant's medical conditions, it was determined that he was mentally responsible for his behavior, he could distinguish right from wrong, and he possessed sufficient mental capacity to participate in administrative or judicial proceedings as deemed appropriate by command.  The inquiry concluded that his medical conditions, including PTSD and mTBI, did not contribute to his current legal problems.
   d.  On 20 November 2013, the applicant consulted with legal counsel and the applicant voluntarily requested discharge in lieu of trial by court-martial.

   e.  Thus, the applicant's contentions are not supported by the evidence of record.

3.  The applicant's request for discharge under the provisions of AR 635-200, chapter 10, to avoid trial by court-martial was both voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Considering all the facts of the case, the reason for discharge and characterization of service were appropriate and equitable.

4.  During the period of service under review, the applicant was charged with two offenses, each in itself, punishable by a court-martial and subject to a bad conduct or dishonorable discharge.  He was reduced to private (E-1) prior to his discharge and he failed to complete his 4-year reenlistment obligation.  Thus, the applicant's record of service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to either an honorable or general discharge.

5.  Records show the applicant had three separate periods of enlistment in the RA during the period of service under review, as follows:

* enlisted on 18 January 2007 – honorably discharged on 16 December 2009 to reenlist
* reenlisted on 17 December 2009 – honorably discharged on 29 March 2012 to reenlist
* reenlisted on 30 March 2012 – discharged under other than honorable conditions on 14 January 2014

6.  The governing regulation states a DD Form 214 will not be prepared for enlisted Soldiers discharged for immediate reenlistment in the RA.

   a.  The evidence of record also shows that for Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except honorable, an entry will be made in item 18 showing the period of their continuous honorable active service up until the date before commencement of the current enlistment.

	b.  Item 18 of the applicant's DD Form 214 shows an entry for continuous honorable active service from 18 January 2007 through 16 December 2009.  However, his continuous honorable active service was actually through 29 March 2012.

	c.  Therefore, it would be appropriate to correct item 18 of his DD Form 214 to show the correct continuous period of his honorable active service.

8.  Therefore, in view of all of the foregoing, the applicant's DD Form 214 should be corrected, as recommended below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ____X___ GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

   a.  deleting from item 18 of his DD Form 214 the entry, "CONTINUOUS HONORABLE ACTIVE SERVICE:  20070118–20091216" and

   b.  adding to item 18 of his DD Form 214 the entry, "CONTINUOUS HONORABLE ACTIVE SERVICE:  20070118–20120329."
   
2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to the type of separation he received.



      _______ _   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)                                         AR20140013079



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ABCMR Record of Proceedings (cont)                                         AR20140013079



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