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ARMY | BCMR | CY1990-1993 | 9311141
Original file (9311141.rtf) Auto-classification: Denied
APPLICANT REQUESTS: That his general discharge (GD) issued in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation (AR) 635-200 be upgraded to fully honorable (HD) issued by reason of personality disorder under the provisions of chapter 5-13, AR 635-200.
APPLICANT STATES : That he was suffering from depression and was “offered a Chapter 5 discharge.” Someone outside his normal chain of command decided that he should be court-martialed instead of receiving a medical discharge.

EVIDENCE OF RECORD : The applicant's military records show:

He was born on 7 February 1956 and enlisted in the Regular Army on 5 July 1977. Trained as a single channel radio operator and a Chaparral crewmember, he remained on continuous active duty until discharged on 6 November 1990.

In 1989, the applicant was a staff sergeant (E-6) stationed at Fort Dix, New Jersey. On 11 December 1989, he absented himself from his unit without proper leave (AWOL) and did not return until 26 June 1990, a period of 198 days.

Upon his return to military control, the applicant was placed in the Personnel Control Facility at Fort Dix. He told his chain of command that he went AWOL because of stress caused by his marriage, job, and finances. He was given a mental health evaluation and, on 10 July 1990, a psychiatric evaluation was rendered which found him to have a personality disorder and recommended that he be discharged under the provisions of chapter 5-13, AR 635-200, personality disorder, “IF DEEMED APPROPRIATE BY COMMAND.”

Although the applicant’s company commander recommended a chapter 5-13 discharge with an HD, the battalion commander recommended, and the brigade commander accepted, that the applicant be tried by court-martial. This action was routed outside the applicant’s chain of command for a review and recommendation by the commander of the US Army Separation and Transfer Point, the person most knowledgeable of methods of discharge, who recommended against chapter 5 processing.
Court-martial charges were preferred and, after consulting with legal counsel, the applicant, on 5 September 1990, requested separation in lieu of trial under the provisions of chapter 10, AR 635-200. He also requested that he be given a GD by the approving authority. The approving authority approved the applicant’s request on 17 October 1990 and authorized a GD.

The applicant was separated with a GD on 6 November 1990. He had 13 years, 4 months, and 2 days of creditable service. His DD Form 214, Certificate of Release or Discharge From Active Duty, erroneously indicates no lost time, but he actually had 198 days of lost time due to AWOL.

The applicant made application to the Army Discharge Review Board (ADRB) seeking to upgrade his discharge to HD and change the separation authority and narrative reason for separation. On 23 February 1996, he appeared with counsel before the ADRB. The ADRB voted unanimously to deny his request.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense for which the authorized punishment includes a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.

Army Regulation 635-200, chapter 5-13, provides for the separation of enlisted personnel for personality disorders which interfere with assignment to, or performance of, duty. Separation is authorized only if the diagnosis, which must be made by a physician trained in psychiatry, is so severe that the soldier’s ability to function is significantly impaired. The regulation provides that commanders will not take action to separate under this chapter in lieu of disciplinary action solely to spare a soldier who may have committed serious acts of misconduct.

DISCUSSION : Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. The applicant was a noncommissioned officer with more than 12 years of service when he went AWOL. There is no indication in the record that he was suffering from emotional problems prior to committing his offense. He was only referred for evaluation and counseling upon his return to military control. The referral was made by his company commander.

2. The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations. There is no indication that the request was made under coercion or duress. The request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.

3. The psychiatrist’s recommendation that the applicant be separated under chapter 5-13, AR 635-200, by reason of personality disorder was merely a recommendation; the final decision to separate or court-martial resided with the applicant’s brigade commander. That the brigade commander sought advice from the commander of the Separation and Transfer Point was not inappropriate as that individual was more knowledgeable of Army separation policies.

4. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION : The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE :

GRANT

GRANT FORMAL HEARING

DENY APPLICATION




                                                      Karl F. Schneider
                                                      Acting Director

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