BOARD DATE:	  8 September 2015

		DOCKET NUMBER:  AR20150001371 


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 his narrative reason for separation be changed from condition, not a disability to hardship.

2.  The applicant states:

   a.  In 2002, he purchased a home in San Jose, CA.  During this period his mother and spouse were fully employed and making regular payments on the home.  In May 2004, after careful consideration, he decided to enlist in the Regular Army (RA) as a Satellite Communications Specialist.  He completed training and he was stationed at Fort Hood, TX, with the 4th Infantry Division.
he
   b.  In June 2005, his mother and spouse were laid off due to outsourcing.  His spouse struggled to find work and eventually decided to go back to school for more training.  His mother settled on a minimum wage job to have income for the family.  As a specialist/E-4, his monthly salary and his mother's income were not enough to cover the mortgage on the home.

   c.  Desperate for help, he asked the battalion financial advisor for his opinion; however, the income gap was too great.  He also spoke with the battalion commander who proposed he apply for Officer Candidate School to increase his pay; however, after looking at the numbers it still was not going to be enough to cover the required mortgage expenses.  The situation worsened when he became delinquent on his property taxes and he was given notice that his home would risk going into auction if he didn't take care of the property taxes.

   d.  Under this enormous hardship the only way he felt he could fix the situation was to be separated from the Army and go back to his old civilian job where his pay was much higher than in the service.  He initiated a request to be separated from the Army under a family hardship, but was told by others that due to stop-loss conditions within the Army his request would not be granted.

   e.  The hardship from home, the helpless feeling from his request being rejected, and the extra hours he spent delivering pizza to make extra money placed a toll on him and his duty performance.  Every day was stressful because of the thought that his decision to join the Army was the reason his family was stuck in the situation they were in.

   f.  He started to consult with a psychiatrist about the guilty thoughts and feelings he was having over a period of a couple of months and he was given some medication to help him sleep.  After about three sessions, he told the psychiatrist that the medication would not cure his problems at home and the helpless feeling increased when he was prescribed a higher dosage of sleeping medication.  

   g.  After about two months of pleading his case to the Judge Advocate General and psychiatrist with little progress, he wrote a letter to his Congressman to seek intervention.  As a result, the applicant was separated from the Army in December 2005.  Although his DD Form 214 (Certificate of Release or Discharge from Active Duty) indicates he was discharged for a "condition, not a disability" it was not the root cause.  He did not suffer any condition as it was stated.  His state of mind and thought process were clear with the only intention to undo the issues that his family encountered at home and to help them to the best of his ability.    

3.  The applicant provides:

* DD Form 214 
* Mortgage documents
* 3-page Army Discharge Review Board Case Report and Directive

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 11 May 2004.

3.  Evidence shows the applicant was evaluated on 26 October 2005 by a psychologist from the 4th Infantry Division (Mechanized) Division Mental Health Section.  The purpose of the evaluation was explained to the applicant.  After a thorough examination, the applicant was diagnosed with an adjustment disorder with depressed mood.  It was strongly recommended the applicant be administratively separated as expeditiously as possible in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  It was further noted the applicant met the criteria for administrative separation for a mental disorder.

4.  On 22 November 2005, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him under Army Regulation 635-200, paragraph 5-17, by reason of "Other Designated Physical or Mental Conditions."    

5.  On 22 November 2005, the applicant acknowledged receipt of the separation notification memorandum.  He indicated he understood the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.  He elected not to submit a statement on his own behalf.  

6.  Subsequent to this acknowledgement and legal consultation, the applicant's immediate commander initiated separation action against him under the provisions of Army Regulation 635-200, paragraph 5-17, by reason of other designated physical or mental conditions.  

7.  On 8 December 2005, his separation packet was deemed legally sufficient.  His DD Form 214 shows he was honorably discharged on 13 December 2005 under the provisions of Army Regulation 635-200, paragraph 5-17, by reason of "condition, not a disability."  This form shows he completed 1 year, 7 months, and 3 days of net active service this period.  

8.  The applicant provides mortgage documents pertaining to his property in San Jose, CA.

9.  On 14 September 2011, the applicant was informed by the Army Discharge Review Board that his request to change the narrative reason for his discharge was denied.

10.  Army Regulation 635-200, paragraph 5-17, states commanders who are special court-martial convening authorities may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability that potentially interfere with assignment to or performance of duty.  A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition.  Members may be separated for physical or mental conditions not amounting to disability which are sufficiently severe that the Soldier's ability to effectively perform military duties is significantly impaired.

11.  Army Regulation 635-200 states Soldiers on active duty may be discharged or released because of genuine dependency or hardship.

   a.  Dependency exists when death or disability of a member of a Soldier’s (or spouse's) immediate family causes that member to rely upon the Soldier for principal care or support.
   
   b.  Hardship exists when in circumstances not involving death or disability of a member of the Soldier's (or spouse's) immediate family, separation from the Service will materially affect the care or support of the family by alleviating undue and genuine hardship.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to change his narrative reason for separation from condition, not a disability to hardship has been carefully examined.

2.  There is no evidence in his available military personnel records and he did not provide substantiating evidence that shows he was undergoing a family hardship significant enough to merit a discharge for hardship.  Furthermore, there is insufficient evidence to support the applicant's contention that he voluntarily requested separation for hardship and was subsequently denied.

3.  The applicant underwent a mental status evaluation by a competent medical authority who diagnosed him with an adjustment disorder with depressed mood.  The evidence of record also shows he consulted with counsel and he was advised of the basis for the separation action.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  
4.  In view of the foregoing, there appears to be an insufficient evidentiary basis for granting the applicant's requested relief in this case. 

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)                                         AR20150001371





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20150001371



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1