BOARD DATE:	  30 July 2015

		DOCKET NUMBER:  AR20150008797 


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 her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show she was medically retired instead of honorably discharged by reason of "misconduct, (serious offense)" with a Reentry Eligibility (RE) code, presumably, of RE-1.

2.  The applicant states, in effect, she was undergoing processing within the Integrated Disability Evaluation System (IDES) when her commander initiated administrative separation processing without allowing her to complete her IDES processing.

3.  The applicant provides a substantial number of documents that were created throughout her career most notably pertaining to the events encompassing her request as well as numerous medical documents.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 31 August 1995.  She served in military occupational specialty (MOS) 68W (Health Care Specialist) and MOS 68K (Medical Laboratory Specialist).  The available evidence shows the applicant served in Bosnia and Herzegovina from 4 July to 4 October 1998 and in Iraq from 5 August to 12 December 2011.  She was promoted to the rank/pay grade of staff sergeant/E-6 on 1 December 2007.

2.  On 14 February 2013, she accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to obey a lawful order on two separate occasions.  The applicant's punishment consisted of a reduction in rank/pay grade to sergeant/E-5.
 
3.  On 19 February 2013, the applicant's immediate commander notified her of his intent to initiate separation action against her in accordance with Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, for misconduct - commission of a serious offense.  The specific reason for the proposed action was that she wrongfully violated a court appointed protective order placed on her by the City of El Paso, TX.  Her commander recommended the issuance of an under other than honorable conditions discharge.

4.  On 20 February 2013, the applicant acknowledged receipt of the commander's intent to separate her.  She consulted with legal counsel and she was advised of the basis for the contemplated separation action for misconduct, the type of discharge she could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to her.  She acknowledged she understood that:

	a.  She could expect to encounter substantial prejudice in civilian life if an under other than honorable conditions discharge was issued to her.

	b.  She could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge.

	c.  She requested consideration of her case by an administrative separation board with a personal appearance.  She also requested consulting counsel and representation by military counsel.

5.  Subsequent to her acknowledgement, the applicant's immediate commander initiated separation action against her in accordance with Army Regulation      635-200, paragraph 14-12c, for misconduct.  Her commander noted the applicant was resistant to rehabilitation having willingly and knowingly disobeyed direct orders.  Furthermore, a document contained in her military records addressed to the Staff Judge Advocate notes the applicant's Article 15 was upgraded from a company grade Article 15 to a field grade Article 15 due to the fact that she violated her no contact order again, immediately after the first reading of the company grade Article 15.  It was further noted the applicant left her 8-year old child at her house to go to her ex-husband's house.  She forced her way into the home, broke a picture frame and hit her ex-husband and his mother with the broken picture frame.  The applicant's chain of command also recommended approval of the discharge action with an under other than honorable conditions discharge.

6.  On 19 April 2013, the administrative separation board convened and the applicant appeared with counsel.  The board recommended the applicant's discharge with a characterization of service of general, under honorable conditions.

7.   The applicant provides a DA Form 3947 (Medical Evaluation Board (MEB) Proceedings), dated 27 March 2013, which shows an MEB convened to evaluate the applicant's medical conditions.  Item 12 of this form shows the applicant did not present views on her behalf.  After consideration of clinical records, laboratory findings, and physical examination, the MEB found that the applicant had the following two medical conditions/defects which were all incurred while she was entitled to base pay and did not exist prior to service:

	a.  Post-traumatic stress disorder (PTSD), chronic.  This condition did not meet the medical retention standards of Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-33.

	b.  Major depressive disorder, recurrent, chronic.  This condition did not meet the medical retention standards of Army Regulation 40-501, paragraph     3-32.

   c.  The applicant was recommended for referral to a Physical Evaluation Board (PEB) for further adjudication.  The findings and recommendation of the MEB were approved on 12 April 2013.

8.  On 10 May 2013, after having carefully considered and reviewed the MEB proceedings, the administrative separation board proceedings, and recommendations of the chain of command, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct - commission of a serious offense with a general, under honorable conditions characterization of service.  In doing so, the separation authority stated that he did not find the applicant's medical conditions were the direct or substantial contributing causes of the conduct which led to the recommendation for administrative elimination, or that other circumstances of the applicant's case warranted disability processing instead of further processing for administrative separation.

9.  On 20 May 2013, the applicant was accordingly discharged.  Her DD Form 214 shows she was discharged under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct (serious offense) with a general, under honorable conditions characterization of service and an RE code of RE-3.  She completed 17 years, 8 months, and 20 days of net active service this period. 

10.  On 8 September 2014, the applicant applied to the Army Discharge Review Board (ADRB) in an effort to upgrade her discharge.  After carefully examining the applicant's record of service the board determined the characterization of her discharge was too harsh and voted to grant relief in the form of an upgrade of the characterization of her service to honorable.  The board determined the narrative reason and corresponding RE code for her discharge were both proper and equitable, and voted unanimously not to change those items.

11.  The applicant provides service and post-service medical documents which indicate she has been under continuous treatment in for recurrent depressive disorder and chronic PTSD since her discharge.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities.  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.  Only a general court-martial convening authority (GCMCA) may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.  

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System 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 3-1 contains guidance on the standards of unfitness because of physical disability.  It states, in pertinent part, that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.  Once an MEB determines the Soldier fails medical retention standards, the Soldier is referred to a PEB.  

14.  Army Regulation 635-40 also provides that 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.  Under the provisions of Army Regulation 635-200, paragraph 1-33, the commander exercising general court-martial jurisdiction over the Soldier may abate the administrative separation.  This authority may not be delegated.  A copy of the decision, signed by the general court-martial convening authority (GCMCA), must be forwarded with the disability case file to the PEB.  A case file may be referred in this way if the GCMCA finds the following:

	a.  The disability is the cause, or a substantial contributing cause, of the misconduct that might result in a discharge under other than honorable conditions.

	b.  Other circumstances warrant disability processing instead of alternate administrative separation.

15.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard.  Chapter 3 prescribes the basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes.

* RE code 1 applies to persons who completed an initial term of active service who were fully qualified for enlistment when separated
* RE code 2 no longer applies
* RE code 3 applies to persons who were not qualified for reentry or continuous service at the time of separation, but the disqualification in waivable
* RE code 4 applies to Soldiers separated from their last period of service with a nonwaivable disqualification

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to correct her DD Form 214 to show she was medically retired instead of honorably discharged by reason of "misconduct, (serious offense)" has been carefully examined; however, the evidence of record does not support the applicant's request.

2.  The evidence of record shows the applicant displayed a pattern of unsatisfactory conduct and performance when, as a noncommissioned officer, she received NJP under the UCMJ for disobeying a lawful order on two separate occasions and by violating protective orders placed on her by the City of El Paso, TX.  

3.  Accordingly, her immediate commander initiated separation action against her.  The evidence further shows her separation processing was accomplished in compliance with applicable regulations and there is no evidence of procedural errors that would have jeopardized her rights.  

4.  The applicant's contentions are noted; however, there is insufficient evidence to show her command unjustly pursued a misconduct discharge to deny her completion of the PDES process.  

5.  In his capacity as the GCMCA and prior to making a decision, the separation authority reviewed the proceedings for the applicant's MEB and determined that none of her listed ailments were a direct or substantial cause of her misconduct.  The applicant has not shown that the separation authority was wrong in reaching this conclusion.

6.  Notwithstanding the applicant's contentions, the evidence of record shows she was properly assigned an RE code of RE-3 when she was discharged for misconduct in accordance with Army Regulation 635-200, paragraph 14-12c, effective 20 May 2013.  The applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

7.  An RE code of RE-3 does not preclude her from reenlisting; however, it does require approval of a waiver.  Requests for waivers are processed through the U.S. Army Recruiting Command by local recruiters and are not within the purview of this Board.

8.  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 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)                                         AR20150008797



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ABCMR Record of Proceedings (cont)                                         AR20150008797



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