IN THE CASE OF:  	

      BOARD DATE:  	3 April 2013

      CASE NUMBER:  	AR20120020103
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant's record of service during the period of enlistment under review and considering the Discussion and Recommendation which follows, the Board determined the discharge was both proper and equitable and voted to deny relief.




      
      
      Presiding Officer
      
I certify that herein is recorded the true and complete record of the proceedings of the Department of the Army Discharge Review Board in this case.

THE APPLICANT’S REQUEST AND STATEMENT:

1.  The applicant requests an upgrade of the characterization of his discharge from general, under honorable conditions to fully honorable, and a change to the narrative reason from misconduct to secretarial authority.

2.  The applicant states, in effect, that his discharge for patterns of misconduct was inequitable and too harsh, because the reason for his discharge was perceived as misconduct while his issue was a misdiagnosis of narcolepsy and untreated obstructive sleep apnea (OSA) and periodic limb movement (PLM) that was revealed in a polysomnographic report (MLST).  For five years, his (P2) profile stated specifically no operating heavy equipment and may occasionally be late for morning formations, and it questioned his fit for duty.  Numerous requests were also made for rehab, change of MOS, MEB, and PEB from his doctors.  The MSLT test was never considered before the separation board.  His medical condition consisting of diagnosis of OSA and PLM, and the misdiagnosis of narcolepsy and its medications should have warranted a referral to MEB, which limited and interfered with his duties as an 88M (operating heavy equipment), and compromised and aggravated his well being.  His OSA is a sleep disorder that caused daytime hyper-somnolence.  Episodes of not breathing, loud snoring, choking, gasping spells, and insomnia interrupted his restful sleep during the night, which caused him to sleep later in the morning.  The OSA/PLM were verified but untreated, which was misperceived as a pattern of misconduct by his commander CPT E and further determined that rehabilitation was not in the best interest of the Army as it would not produce a quality Soldier if he were to remain in the service.  The command further perceived it as not an illness or disorder, and referred to it “as a crutch.”  After the separation board, he was referred to Dr. S, who saw the symptoms of a sleep disorder problem combined with medication management issues.  An MLST test in June 1997 verified Dr. S’s assessment, who gave a professional opinion of his assessment to his command, that it was unfair to penalize the applicant, as a patient, for his disorder, and that if oversleeping continues an MEB will be initiated.
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			25 October 2012
b. Discharge Received:			General, Under Honorable Conditions
c. Date of Discharge:				7 November 1997
d. Reason/Authority/SPD/RE Code:		Misconduct / AR 635-200, paragraph 14-12b
							JKA, RE-3
e. Unit of assignment:				HQ, Military Support Company, Aberdeen Test
						Center, Aberdeen Proving Ground, Maryland
f. Current Enlistment Date/Term:		20 June 1996 / 2 years
g. Current Enlistment Service:		1 year, 4 months, 18 days
h. Total Service:				8 years, 8 months, 22 days
i. Time Lost:					None
j. Previous Discharges:			RA (890216–911218) / HD
							RA (911218-950112) / HD
							RA (950113-960619) / HD
k. Highest Grade Achieved:			E-5
l. Military Occupational Specialty:		88M (Motor Transport Operator)
m. GT Score:					110
n. Education:					HS Grad
o. Overseas Service:				Germany
p. Combat Service:				None
q. Decorations/Awards:			NDSM; AGCM-2; NPDR; ASR; OSR
r. Administrative Separation Board: 		Yes
s. Performance Ratings:			Yes 
t. Counseling Statements:			Yes
u. Prior Board Review:				No
SUMMARY OF SERVICE:		

The applicant enlisted in the Regular Army on 20 June 1996 for a period of 2 years.  He was 29 years old at the time of entry and a high school graduate.  He served in Germany.  There is no record of any commendation or achievement awards.  He has completed 8 years, 8 months, and 22 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record shows that on 14 July 1997, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, by reason of pattern of misconduct for the following reasons:

	a.  receiving a company grade Article 15 on 23 August 1996, for violating Article 86 under UCMJ for failing to be at his appointed place of duty at the prescribed time on eight separate occasions; 

	b.  being convicted by a summary court-martial on 23 January 1997, for failing to be at his appointed place of duty at the prescribed time on two separate occasions and receiving a sentence of being reduced to E-4; forfeiture of $1,010 (suspended); and 30 days restriction.

2.  Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge and advised the applicant of his rights. 
 
3.  On 18 July 1997, the applicant consulted with legal counsel and elected consideration of his case by an administrative separation board.  The applicant submitted a statement on his own behalf.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  The intermediate commander reviewed the proposed action and recommended approval with a general, under honorable conditions discharge.  
4.  On 12 August 1997, the applicant was notified to appear before an administrative separation board and advised of his rights.  

5.  On 8 September 1997, the administrative separation board convened and the applicant appeared with counsel.  The board recommended the applicant’s discharge with characterization of service of general, under honorable conditions.

6.  Although the separation authority’s decision memorandum is not available, the DD Form 214 reflects the result of the separation authority’s approving the recommendation of the administrative separation board and directing the applicant’s discharge with a characterization of service of general, under honorable conditions.

7.  The applicant was discharged from the Army on 7 November 1997, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, for misconduct, a Separation Program Designator code (SPD) of JKA and a RE code of 3. 

8.  The applicant’s service record does not contain any evidence of unauthorized absences or time lost.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Summary Court-Martial, 13 January 1997, failure to go to his appointed place of duty at the prescribed time on 2 occasions (18 October 1996, 22 October 1996), reduced to E-4; forfeiture of $1,010 (suspended); 30 days restriction, (SCM).

2.  Article 15, dated 23 August 1996, failure to go to his appointed place of duty at the prescribed time on 8 occasions (5 August 1996, 24 July 1996, 2 July 1996, 28 March 1996, 9 April 1996, 30 May 1996, 9 February 1996, and 30 January 1996).  The punishment consisted of forfeiture of $343 per month for two months (suspended), 14 days of extra duty and restriction (both suspended), (CG).

3.  Article 15, dated 22 October 1996, failure to go to his appointed place of duty at the prescribed time (18 October 1996).  The suspended punishments of 14 days of extra duty and restriction were vacated, (CG).

4.  Fourteen negative counseling statements dated between 1 April 1996 and 15 January 1997, for showing up to work late; missing formations; and letter of indebtedness. 

5.  A letter of concern, dated 15 October 1996, rendered by the unit commander regarding the applicant’s multiple instances of not being at his duty at the right time, his duties as an NCO, and forewarning him of additional consequences that will vacate his suspended Article 15 punishment and that separation proceeding could be initiated.

6.  Three NCOER covering the following period:

	a.	November 1996 to February 1997 - the applicant was rated as marginal and received 4/5 from the senior rater.

	b.	November 1995 to October 1996 – the applicant was rated as marginal and received 4/4 from the senior rater.

	c.	December 1992 to April 1993 – the applicant was rated as marginal and received 4/4 from the senior rater.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided his application with list enclosures, and a second set of enclosures: 

	a.	DD Form 293, dated 20 October 2012, and listed enclosures from tabs 1 through 20, 
		consisting of reenlistments, awards, certificates, profiles, medications, medical reports, 
		third party statements, Article 15s, result of trial by SCM, separation recommendation, 
		ETS medical exam showing he was qualified for Chapter 14, dated 15 March 1997, and
		DD 214 for service under current review; 
	b.	Self-authored statement with enclosures listed below;
	c.	VA decision correspondence, dated 6 February 2013 and VA claim application, dated 
		30 December 1997;
	d.	Medical records reflecting treatments and profiles during the period of his service from
		1990 to 1996, and a sleep center report, dated 25 February 2005/15 May 2005.

POST-SERVICE ACTIVITY: 

None provided with the application. 

REGULATORY AUTHORITY:

1. 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, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  Army policy states that an under other than honorable conditions discharge is normally considered appropriate; however, a general, under honorable conditions or an honorable discharge may be granted.   

2.  Army Regulation 635-200, 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.  Whenever there is doubt, it is to be resolved in favor of the individual.
3.  Army Regulation 635-200, 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.

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of the characterization of his discharge and a change to the narrative reason for his discharge was carefully considered.  However, after examining his record of service, his military records, and the documents and issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge or a change to the narrative reason for his discharge.  

2.  The record confirms that the applicant’s discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel.  It brought discredit on the Army, and was prejudicial to good order and discipline.  By the pattern of misconduct, the applicant diminished the quality his service below that meriting a fully honorable discharge.  

3.  The applicant contends the discharge was inequitable because of his medical condition.  However, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption.  The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support this issue.  There is no evidence in the record, nor has the applicant produced sufficient evidence to support the contention that he was unjustly discriminated.  In fact, the applicant’s record of service was marred by numerous negative counseling statements, a summary court-martial, and three Article 15 punishments for multiple violations of Article 86 of the Uniform Code of Military Justice throughout his period of service.  The applicant’s statements alone do not overcome the government’s presumption of regularity.  

4.  Regarding the applicant’s contention that numerous requests were made by his doctors for change of MOS, MEB, and PEB, there is no evidence to show such requests were made and/or whether they were denied.  The record reflects that the applicant’s command was aware of his medical issues and had corroborated with the medical authorities prior to and during the administration of his summary court-martial and separation proceedings, and as further reflected in the administrative separation board proceedings.  Therefore, this contention is without merit toward his request for an upgrade and changing the reason for his discharge.

5.  Furthermore, regarding the applicant’s submission of the Veterans Administration (VA) decision, the fact that the VA has granted the applicant service connection for medical conditions the applicant suffered while on active duty does not support a conclusion that these conditions rendered the applicant unfit for further service at the time of his discharge processing.  Further, the available medical evidence in the record does not indicate that the applicant was suffering from a disabling medical or mental condition during his discharge processing that would have warranted his separation processing through medical channels.
6.  The applicant provided insufficient corroborating evidence that demonstrates that either the command's action was erroneous or that the applicant’s service mitigated the misconduct or poor duty performance.  A review of the service record does not reveal any evidence of arbitrary or capricious actions by the applicant’s command.  It appears that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Accordingly, the records show the proper discharge and separation authority procedures were followed in this case.  

7.  Therefore, the reason for discharge and the characterization of service being both proper and equitable, recommend the Board deny relief.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: 	Records Review	  Date: 3 April 2013          Location: Washington, DC

Did the Applicant Testify?  NA 

Counsel: None

Witnesses/Observers: NA 

Board Vote:
Character Change:  0	No Change:  5
Reason Change:	0	No Change:  5
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:	No
Change Characterization to: NA	
Change Reason to:	NA
Change Authority for Separation:  NA
Change RE Code to: NA	
Grade Restoration to: NA	
Other: NA







Legend:
AMHRR - Army Military Human Resource Record	FG - Field Grade	IADT – Initial Active Duty Training	 	RE - Reentry
AWOL - Absent Without Leave	GD - General Discharge	NA - Not applicable	SCM- Summary Court Martial
BCD - Bad Conduct Discharge	HS - High School	NIF - Not in File	SPCM - Special Court Martial
CG - Company Grade Article 15	HD - Honorable Discharge	OAD - Ordered to Active Duty	UNC - Uncharacterized Discharge  
CID - Criminal investigation Department	MP – Military Police	OMPF - Official Military Personnel File	UOTHC - Under Other Than                           			               Honorable Conditions




ADRB Case Report and Directive (cont)		AR20120020103



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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