RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 01 NOVEMBER 2005 DOCKET NUMBER: AR20050001005 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. Mr. Carl W. S. Chun Director Ms. Deyon D. Battle Analyst The following members, a quorum, were present: Mr. James Anderholm Chairperson Mr. Thomas O’Shaughnessy Member Ms. Carol Kornhoff Member The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in three separate applications, that the decision of the administrative board held on 23 January 2004, be declared void and that he be reinstated in the United States Army in the rank and pay grade of sergeant (E-5). He also requests that he receive any and all promotions that he may have been entitled to had he not been illegally discharged. 2. The applicant states that his discharge resulted from the actions of the separation authority that took action on the recommendations of a separation board. He states that the separation board convened to determine whether he should be separated from the Army under the provisions of Army Regulation 635-200, chapter 5, section III, paragraph 5-13, based on personality disorder. He states that the board recommended that he not be retained in the service to perform his current duties and that he be honorably discharged. He states that his separation was in error based on several legal issues in that the action by the separation authority was taken without the benefit of an accurate summation of the proceedings held by the board; that the government recorder was negligent as she did not properly summarize what transpired at the board for the legal advisor or the separation authority; that the government recorder failed to provide the findings and summary to the defense prior to action by the convening authority; and that the legal opinion provided to the separation authority did not address several legal issues that were raised by his defense counsel. He states that since the separation authority was not provided defense material, the legitimacy of the board is questionable and that since neither he nor his counsel had any notice of the impending action by the separation authority, he did not have any rebuttal matters to consider at the time he took action to order his discharge. 3. The applicant goes on to state that during the board proceedings his counsel raised three issues: that the proceedings did not comply with the provisions of Army Regulation 635-200, chapter 5-13; that the government recorder made an improper argument regarding rehabilitation; and that the government recorder improperly injected the appearance of unlawful command influence into the proceedings by arguing to the board members that their senior had already determined that a discharge was the proper resolution and that the board members should defer to the commander's decision. He states that the summarized record provided to the legal advisor and the separation authority had no record of any of the previously mentioned critical issues. He states that Army Regulation 635-200, chapter 2-10(h) mandates that "The proceedings of the board will be summarized as fairly and accurately as possible" and, therefore, the separation authority took unlawful action in ordering his discharge in the absence of an accurate summary. 4. The applicant continues by stating that in January 2003, while he was on deployment orders, he discovered that his wife and children were subject to possible deportation from the United States (US). He states that after his wife married him, she was disowned by her Turkish/German family and that if his family were deported, they would have been forcibly returned to Germany which was his wife's most recent previous residence. He states that under German law, even German-born Turks are ineligible for citizen benefits and that without a family to return to and without a job, his wife did not know where or how she would live. He states that he went to his unit and requested that his deployment be delayed until he could complete the necessary Immigration Naturalization Service (INS) interviews and that his unit was unwilling to allow him to delay deployment for the 2 months it would have taken to conduct the INS interviews. He states that his unit was extremely unhelpful and that the stress of the situation led him to request that he be relieved of his position in the company. He states that although his situation was unique, his command informed him, in writing, that his situation was no different than many of the soldiers and noncommissioned officers in the unit. He states that his unit was aware that the INS interview had to be conducted in person and that the unit's answer to the problem was that he should fix the problem by physical exercise and journaling. He states that his situation led directly to a deterioration of his performance and that he believes that his command decided that he was no longer worth any effort on their part, so they acted to separate him from the Army. 5. The applicant states that after his return to the US he resolved the INS situation, which was the basis for the entire situation and had efforts been taken by his command to assist with his family situation, his dysfunction in Iraq would never have occurred. He states that after his return from Iraq and after he resolved his family crisis, he performed his duties well and that in his decision to retain or order discharge, the separation authority is obligated to following the provisions of Army Regulation 635-200, chapter 5-13. He states that chapter 5-13 authorizes separation for a "deeply ingrained maladaptive pattern of behavior of long duration that interferes with the solder's ability to perform duty. (Exceptions: combat exhaustion and other acute situational maladjustments.)" He states that the regulation also mandates, at paragraph e, that separation processing may not be initiated under this paragraph until the soldier has been counseled concerning deficiencies and has been afforded ample opportunity to overcome those deficiencies as reflected in the appropriate counseling or personnel records. The applicant concludes by stating that clearly his family situation met the definition of an acute situational maladjustment; that the unit never gave him ample opportunity to overcome his problem; that there was absolutely nothing in his record during the board proceedings to show his subsequent performance; and that although he raised these clear regulatory requirements during the board proceedings, the members were incorrectly told by government counsel to ignore them. He states that the Government, by its failure to provide a proper summarized record for the separation authority, made a mockery of the standards required by Army Regulation 635-200 and that at no time was a proper record detailing the issues raised by his counsel at the board proceedings ever presented to the separation authority. 6. The applicant provides a copy of a Report of Proceedings by Investigating Officer/Board of Officers; a transcript of the Administrative Separation Board Hearing; a copy of his Certificate of Release or Discharge from Active Duty (DD Form 214); a copy a memorandum from a Judge Advocate Defense Counsel dated 9 February 2004, addressed to the Commander, United States Army Garrison, Fort Riley, Kansas; and a copy of a Report of Mental Status Evaluation. CONSIDERATION OF EVIDENCE: 1. On 13 March 1996, he enlisted in the Regular Army in San Juan, Puerto Rico, for 3 years, in the pay grade of E-1. He successfully completed his training as a field artillery surveyor. He was promoted to the pay grade of E-2 on 13 September 1996; to the pay grade of E-3 on 13 March 1997; and to the pay grade of E-4 on 1 April 1998. 2. On 21 May 1998, the applicant reenlisted in the Army for 4 years in the pay grade of E-4 and went on to successfully complete training as a military policeman. He was promoted to the pay grade of E-5 on 1 January 2001. 3. The available records show that the applicant was seen at Community Health Mental Services on (CHMS) 12 May 2003, after he was referred for assessment upon returning from Iraq. He was medically evacuated from the combat theater after a suicide attempt by overdose. After two separate assessments, he was diagnosed as having an adjustment disorder with mixed disturbance of emotions and conduct and a personality disorder, not otherwise specified, with dependent and antisocial features. The attending psychiatrist identified his adjustment disorder as a maladaptive emotional reaction to an identifiable stress, in this case deployment and the separation from his wife. The psychiatrist identified his personality disorder as a long-standing, inflexible pattern of maladaptive behavioral and emotions that occur in response to routine stresses of daily life. The psychiatrist stated that based on the personality disorder, at the discretion of the command, the applicant could be separated from the Army under the provisions of Army Regulation 40-501, chapter 3-35, and that the adjustment disorder was a direct result of active military service and would likely resolve spontaneously upon separation. The psychiatrist opined that the applicant should be considered potentially dangerous to himself based on his recent statements and behaviors and that he should be considered for administrative separation from the military in accordance with Army Regulation 635-200, chapter 5-13, or any other administrative process deemed appropriate by the commander. The psychiatrist stated that the applicant did not have a severe mental disorder and was not considered in accordance with Army Regulation 40-501 to be mentally ill and that he did not meet the criteria for initiation of a medical evaluation board. He stated that the applicant had minor mental conditions that continue to impair his ability to effectively perform his assigned military duties. The applicant was instructed to return to the emergency room or CMHS for any psychiatric emergencies. 4. The available records show that the applicant was assigned to the 977th Military Police (MP) Company, 924th MP Battalion, Fort Riley, Kansas, on 23 January 2004, when a board of officers convened for the purpose of determining whether the applicant should be retained on active duty. The Report of Proceedings by the Investigating Officer/Board of Officers shows that all of the documentation that was applicable to the applicant's case was available for review during the proceedings. After numerous individuals were questioned by the recorder and by counsel, the board determined that the allegation in the notice of the proposed separation (unavailable for review) was supported by a preponderance of the evidence. The board recommended, in view of the findings, that the applicant not be retained in the service and that his service be characterized as honorable. 5. On 9 February 2004, the Judge Advocate (JA) Defense Counsel forwarded a memorandum to the Commander, U.S. Army Garrison, Fort Riley, Kansas. In the memorandum the Defense Counsel stated that the action recommended by the board against the applicant was legally invalid and requested that the decision be changed to direct the applicant's retention on active duty. The Defense Counsel stated that the government recorder failed to provide him (the Commander, U.S. Army Garrison) or his legal advisor with an accurate summary of the board proceedings. The Defense Counsel stated that the Government recorder did not provide the findings and summary to the defense; that the legal opinion provided did not address several legal issues in the case; and that no rebuttal was received because he did not have notice of impending action. In the memorandum the Defense Counsel went on to express his contentions, beliefs and opinions and he listed what he believed to be in violation and improprieties that were made during and after the board proceedings. The Defense Counsel concluded his memorandum by stating that Army Regulation 635-200 mandates that the applicant be retained in the Army for such time as the unit complies with chapter 5-13(e) of Army Regulation 635-200. 6. On 1 April 2004, the applicant was honorably discharged under the provisions of Army Regulation 635-200, chapter 5-13, as a result of a personality disorder. He had completed 8 years and 19 days of total active service. 7. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 5, paragraph 13 contains the policy and outlines the procedures for separating individuals for personality disorder, and provides, in pertinent part, that a soldier may be separated for personality disorder (not amounting to disability) that interferes with assignment to or performance of duty. The diagnosis of personality disorder must have been established by a physician trained in psychiatry and psychiatric diagnosis. Separation because of personality disorder is authorized only if the diagnosis concludes that the disorder is so severe that the soldier’s ability to function effectively in the military environment is significantly impaired. 8. Army Regulation 635-200 also contains the policies for board procedures. Chapter 2-10(h) provides that the proceedings of the board will be summarized as fairly and accurately as possible. They will contain a verbatim record of the findings and recommendations. 9. Army Regulation 40-501, chapter 3 sets forth medical fitness standards for retention and separation. Paragraph 3-35 provides for individuals with personality, sexual and gender identity, or factitious disorders; disorders of impulse control not elsewhere classified; substance-related disorders. It states, in pertinent part, that these conditions may render an individual administratively unfit rather than unfit because of physical disability. Interference with performance of effective duty in association with these conditions will be dealt with through administrative channels. DISCUSSION AND CONCLUSIONS: 1. In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement. 2. The available records show that the applicant was discharged pursuant to the recommendation made by a board of officers after he attempted to commit suicide. He underwent a Mental Status Evaluation and after two separate assessments, the attending psychiatrist diagnosed him as having an adjustment disorder and a personality disorder. At that time, a board of officers determined that he should not be retained in the Army and that he should be honorably discharged in accordance with applicable regulation. Accordingly, he was properly discharged. 3. Army Regulation 635-200, chapter 2-10(h) provides that the proceedings of the board will be summarized as fairly and accurately as possible and a review of the documentation submitted by the applicant shows summarized board proceedings in accordance with the regulation. He has provided no evidence to show that the proceedings are not accurate or unfair. In fact, the Report of Proceedings shows that all documentation that was applicable in his case was available during the board proceedings. 4. At the time of his Mental Status Evaluation, the attending psychiatrist determined that his personality disorder may render him administratively unfit rather than unfit because of physical disability in accordance with Army Regulation 40-501. Therefore, discharging him under the provisions of Army Regulation 635-200, chapter 5-13, based on personality disorder was proper. 5. The contentions made by the applicant have been noted. However, there is no evidence in the available records that show that the decision made by the board of officers to discharge him from the Army was in error or unjust. It appears that upon notification of the board's decision, the applicant's counsel submitted additional matters and requested that the decision be changed. Although, the response to counsel's request is not available for review, it is reasonable to presume that counsel's contentions were reviewed by competent authority and a decision was made to uphold the decision made by the board of officers. Therefore, there is no basis granting the applicant's requests to void the decision made by the board of officers and to reinstate him on active duty. 6. The applicant's contention that he was illegally discharged appears to be without merit and his dissatisfaction with the decision made by the board of officers to honorably discharge him from the Army after attempting to commit suicide, is not a sufficient justification to warrant the relief requested. 7. In view of the foregoing, there appears to be no basis for granting the applicant's request. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___JA___ ___TO __ ___CK __ 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. ____James Anderholm_____________ CHAIRPERSON INDEX CASE ID AR2050001005 SUFFIX RECON DATE BOARDED 20051101 TYPE OF DISCHARGE HD DATE OF DISCHARGE 01042004 DISCHARGE AUTHORITY AR 635-200 DISCHARGE REASON CHAPTER 5-13 BOARD DECISION DENY REVIEW AUTHORITY AR 15-185 ISSUES 1. 192 110.0300/REINSTATEMENT 2. 310 131.0000/PROMOTION 3. 4. 5. 6.