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ARMY | BCMR | CY2015 | 20150002747
Original file (20150002747.txt) Auto-classification: Denied

		IN THE CASE OF:  

		BOARD DATE:  7 April 2015

		DOCKET NUMBER:   AR20150002747


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 general discharge to an honorable discharge and a medical retirement.

2.  The applicant states prior to his discharge he had been through a Medical Evaluation Board (MEB) and he was waiting on a Physical Evaluation Board (PEB).  But, the commanding general inappropriately disciplined and discharged him rather than allow him to receive treatment for his service-connected disabilities.  

3.  Since leaving the military he has been diagnosed with Post-Traumatic Stress Disorder (PTSD) and rated 90% disabled by the Department of Veterans Affairs (VA).

4.  The applicant provides copies of his:

* service personnel records
* service medical records
* post-active duty medical documents
* DD Forms 214 (Certificate of Release or Discharge from Active Duty)

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.  Following service in the Texas Army National Guard the applicant enlisted in the Regular Army on 17 May 1994.  He held military occupational specialty 91W (Health Care Specialist).  He also served in Bosnia from September 1997 to June 1998.  

3.  The following actions occurred between 2004 and 2005, when the applicant held the rank/pay grade of sergeant first class (SFC)/E-7, which was the highest rank that he held:

   a.  Between 4 October 2004 and 19 October 2005, he received 12 negative counseling's.

   b.  He received a Relief for Cause Noncommissioned Officer Evaluation Report for his performance as a platoon sergeant for the period December 2004 through March 2005.

	c.  On 31 March 2005, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully and without authority wearing a Ranger Tab on his uniform.

	d.  On 20 April 2005, he received a Bar to Reenlistment due to poor performance.

	e.  On 22 September 2005, he accepted NJP under the provisions of Article 15, UCMJ, for wrongful use of methamphetamines and amphetamines between 10 July and 10 August 2005. 

4.  A DA Form 3947 (MEB Proceedings), dated 25 October 2005, shows in:

	a.  Item 13 (Diagnosis) –

* generalized anxiety disorder
* depressive disorder
* left shoulder arthritis, medically acceptable
* dyslipidemia, medially acceptable
* migraine headache
* "SM is competent for MEB/PEB (Physical Evaluation Board) and pay purposes"

	b.  Item 14 (the board recommends that the patient be) referred to a PEB.

5.  On 26 October 2005, the applicant's immediate commander notified the applicant he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), paragraph 
14-12c, due to commission of a serious offense.  He cited the bases for his proposed action were:  The applicant's wrongful use of methamphetamines and amphetamines, which resulted in the issuance of a General Officer NJP; wrongfully wearing a Ranger Tab on his uniform, which resulted in disciplinary disenrollment from the Advanced Noncommissioned Officer Course and the issuance of a General Officer NJP; failing to report on numerous occasions for which he received counseling statements; and he was currently pending a Company Grade NJP for failure to report.  He was also advised of his rights.  Additionally, the commander stated he was recommending that the applicant receive an under other than honorable conditions discharge.  On the same date the applicant acknowledged receipt of the separation notification.   

6.  On 16 November 2005, the applicant annotated a Texas PEB Fact Sheet indicating that he fully understood the information provided and he understood any discrepancies with his MEB proceedings should be addressed to the PEB Liaison Officer and his physician prior to the MEB proceedings being submitted to the PEB. 

7.  On 17 November 2005, he accepted NJP under the provisions of Article 15, UCMJ, for four incidents of failing to go to his appointed place of duty.

8.  On 18 November 2005, after consulting with counsel, the applicant requested a conditional waiver.  Contingent upon his receiving no less than a general discharge, he voluntarily waived consideration of his case by an administrative separation board, personal appearance before the board, and assistance of counsel.  He indicated he did not desire to submit a statement on his own behalf.

9.  His chain of command recommended the issuance of a general discharge and the applicant's immediate commander initiated separation action against him. 



10.  On 9 December 2005, the separation authority reviewed the administrative separation packet and the MEB proceedings and:

   a.  Stated "separation via medical channels is inappropriate and specifically disapproved."

   b.  Approved the applicant's separation under the provisions of Army Regulation 635-200, Chapter 14, Section III, Paragraph 14-12c (Commission of a Serious Offense), for misconduct, and directed the issuance of a General Discharge Certificate.  

   c.  Stated "the Soldier's medical condition was not and is not a substantial contributing cause of the Soldier's misconduct forming the basis for separation."  "Other circumstances of the case do not warrant disability processing instead of, or in lieu of, further processing for administrative separation."

11.  On 16 December 2005, the applicant was discharged under the provisions of Army Regulation 635-200, Paragraph 14-12c, for misconduct (serious offense), with an under honorable conditions (general) discharge.  He had completed 
11 years and 7 months of active service this period.  

12.  The applicant provided copies of his military personnel records and service medical records.  However, he did not provide a diagnosis of PTSD or VA Rating information and there is no such information available.

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

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include commission of a serious offense.  A serious offense is one which the circumstances warrant discharge and a punitive discharge is or would be authorized for the same or a closely related offense.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  

	b.  Paragraph 3-7a states 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that prior to his discharge he had been through an MEB and he was waiting on a PEB and the commanding general inappropriately disciplined and discharged him rather than allow treatment for his service-connected disabilities.  

2.  The applicant committed serious offenses by wrongfully using methamphetamines and amphetamines, wrongfully wearing a Ranger Tab on his uniform, and failing to report on numerous occasions.  Accordingly, his commander initiated separation action against him.  All requirements of law and regulation were met and his rights appear to have been fully protected throughout the separation process.

3.  The governing regulation specifies that an under other than honorable discharge is considered appropriate for his circumstances.  Therefore, his entire service record appears to have been taken into consideration.  His performance and conduct did not meet acceptable standards for a Soldier receiving an honorable discharge.

4.  The separation authority stated "The Soldier's medical condition was not and is not a substantial contributing cause of the Soldier's misconduct forming the basis for separation."  "Other circumstances of the case do not warrant disability processing instead of, or in lieu of, further processing for administrative separation."  

5.  There is no evidence available showing the applicant was diagnosed with PTSD prior to being discharged from active service or that or that his medical conditions were inadequately treated.  Additionally, there is no evidence available to support the applicant's contention that his discharge should be upgraded or that he should receive a medical retirement in-lieu of the general discharge that he received.

6.  In view of the foregoing, there is no basis for granting the applicant's 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 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)                                         AR20120009372



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ABCMR Record of Proceedings (cont)                                         AR20150002747



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

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