RECORD OF PROCEEDINGS


	IN THE CASE OF:	

	BOARD DATE:	                         

 DOCKET NUMBER:  AR20080000535 


	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.  


	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 effect, that his discharge be upgraded to honorable.

2.  The applicant states, in effect, that he was always a good Soldier.  He states, in effect, he was denied an honorable discharge because of his depression over being in Iraq and the accidents which he experienced.  He adds that he believes the record is in error or unjust because he was a good Soldier and a good son of the flag of the United States Army and the United States of America and as a Soldier he will fight again for his country.

3.  In a DD Form 293, Application for the Review of Discharge from the Armed Forces of the United States, the applicant states he is requesting medical treatment for his personal health and for those injuries he received in combat.  He would also like to qualify for his Montgomery GI Bill educational benefits.

4.  In an added, self-authored note to the Board, the applicant reiterates, in effect, that he wants his discharge upgraded so that he can qualify for MGIB educational benefits, and so that at the same time, he will be given a second chance in life, so in that way, he will have all the benefits as a veteran of the United States of America.

5.  In support of his request, the applicant submitted twenty-five documents, which includes documents related to treatment he received for neck pain, dental pain, insomnia, depression, and for his personal unusual behavior.

CONSIDERATION OF EVIDENCE:

1.  The evidence shows that the applicant enlisted in the US Army Reserve, Delayed Entry Program, on 9 October 2003.  On 5 February 2004, he enlisted in the Regular Army.  He successfully completed basic combat training and his advanced individual training and on completion of his advanced training, he was awarded the military occupational specialty 11B, Infantryman.

2.  On 9 October 2003, the applicant completed a DD Form 2366, Montgomery GI Bill Act of 1984 (MGIB) form, in conjunction with his enlistment process.  The principal purpose of completing this form was to establish eligibility to participate in the MGIB Educational Program.

3.  Item 4, of the DD Form 2366, sets forth one of the provisions to be eligible to participate in the MGIB Educational Program.  It specifically states, "I must complete 36 months of active duty service before I am entitled to the current rate of monthly benefits for a period of 36 months."  Item 9, of the DD Form 2366 the applicant signed on his enlistment specifically states, "I must receive an Honorable discharge for service establishing entitlement to the MGIB."

4.  Item 18 (Remarks), of the applicant’s DD Form 214, show he served in Kuwait and in Iraq for the period 28 September 2005 through 11 June 2006.

5.  The applicant was awarded the Purple Heart for wounds received as a result of hostile actions on 27 March 2006.

6.  On 28 April 2006, the applicant received nonjudicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for willfully disobeying a noncommissioned officer (NCO), on 26 April 2006.  He was reduced to Private First Class (E-3), suspended, to be automatically remitted if not vacated before 28 September 2006; and, he was required to perform extra duty and to be on restriction for 14 days.  The applicant did not appeal the punishment imposed.

7.  The evidence shows that on 6 May 2006 the suspension of the punishment of reduction to Private First Class (E-3) was vacated.  The vacation of the punishment imposed on 28 April 2006 was based on his having failed to go, at the time prescribed, to his appointed place of duty on 5 May 2006.

8.  On 31 May 2006, the applicant received an Article 15, under the provisions of the UCMJ, for willfully disobeying a Sergeant, a Sergeant First Class, and a First Sergeant, on 28 May 2006; for attempting to physically strike the Sergeant on 28 May 2006; and for assaulting a Specialist by running after him on 28 May 2006.  The imposed punishment was reduction to the rank and pay grade Private, E-1; forfeiture of $636.00 pay per month for two months; and extra duty for 45 days, suspended, to be automatically remitted unless vacated before 30 November 
2006.  The applicant did not appeal the punishment imposed.

9.  The evidence shows that on 3 August 2006 the suspension of the punishment of extra duty for 45 days was vacated.  The vacation of the punishment imposed on 31 May 2006 was based on his having been disrespectful in language and deportment toward an NCO on 29 July 2006.

10.  On 22 August 2006, charges were preferred against the applicant for going without authority from his appointed place of duty on 3 August 2006; for willfully disobeying an NCO on 29 July 2006; and for being disrespectful in language and 

deportment toward an NCO on 29 July 2006; for willfully disobeying an NCO on 3 August 2006; and for being disrespectful in language and deportment toward an NCO on 3 August 2006.

11.  On 22 August 2006, the applicant voluntarily submitted a request for discharge for the good of the service, in lieu of trial by court-martial, under the provisions of Army Regulation 635-200, Chapter 10.

12.  In his request the applicant stated he understood he could request discharge for the good of the service because charges had been filed against him under the Uniform Code of Military Justice (UCMJ), which could authorize the imposition of a bad conduct or dishonorable discharge.  He added that he was making his request of his own free will and had not been subjected to coercion whatsoever by any person.  The applicant stated he had been advised of the implications that were attached to his request and that by submitting his request, he acknowledged that he was guilty of the charge against him or of a lesser or included offense which also authorized the imposition of a bad conduct or a dishonorable discharge.  Moreover, he stated that under no circumstances did he desire further rehabilitation for he had no desire to perform further military service.

13.  Prior to completing his request for discharge for the good of the service, the applicant was afforded the opportunity to consult with counsel.  He consulted with counsel on 22 August 2006 and was fully advised of the nature of his rights under the UCMJ.  Although he was furnished legal advice, he was informed that the decision to submit a request for discharge for the good of the service was his own.

14.  The applicant stated that he understood that if his request were accepted, he could be discharged under conditions other than honorable and furnished an Under Other Than Honorable Conditions Discharge Certificate.  He was advised and understood the effects of an under other than honorable conditions discharge and that issuance of such a discharge could deprive him of many or all Army benefits that he might be eligible for, that he might be ineligible for many or all benefits administered by the Veterans Administration [now the Department of Veterans Affairs], and that he might be deprived of his rights and benefits as a veteran under both Federal and state law.  He also understood that he could expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.

15.  The applicant was advised that he could submit a statement in his own behalf, which would accompany his request for discharge.  There is no evidence the applicant submitted a statement in his own behalf.

16.  The applicant's request for discharge, for the good of the service, in lieu of court-martial, was reviewed by the 101st Airborne Division and Fort Campbell Staff Judge Advocate on 8 November 2006.  After reviewing the charges and the applicant's service record, the SJA recommended the applicant's request be approved and that he be issued an under other than honorable conditions discharge.

17.  The evidence shows that on 8 November 2006, the approval authority, a Major General, approved the applicant's request for discharge, for the good of the service, in lieu of trial by court-martial.

18.  The applicant was discharged with an under other than honorable conditions discharge, in the rank and pay grade of Private, E-1, on 17 November 2006, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service, in lieu of trial by court-martial.

19.  On the date of his discharge, the applicant had completed 2 years, 9 months, and 13 days creditable active military service, with no time lost.

20.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.  On 11 October 2007, he was notified that after review of his case and all applicable records, it was determined that relief was warranted.  The ADRB voted to grant partial relief to his request and approved an upgrade of the characterization of his discharge to general, under honorable conditions.

21.  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 or offenses for which the authorized punishment includes a punitive discharge may submit, at any time after the charges have been preferred, a request for discharge for the good of the service, in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate, but the separation authority may direct a general discharge or an honorable discharge if such is merited by the Soldier's overall record and if the Soldier's record is so meritorious that any other characterization clearly would be improper.

22.  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.

23.  The applicant submitted twenty-five documents of which some were related to treatment he received.  These documents show he received treatment for neck pain, dental pain, insomnia, depression, and for his personal unusual behavior.

      a.  One of the documents showed he was diagnosed with neck pain which was related to a combat injury for which he was awarded the Purple Heart.
      
      b.  Another document showed he had pain in his teeth.  He was referred to dental sick call to receive treatment.
      
      c.  Two documents, one dated 17 February 2006 showed the applicant was taken to the medical treatment facility during the night due to insomnia and outbursts.  He had reportedly had multiple auditory and visual hallucinations and paranoid ideations/delusions.  He had also reportedly threatened to kill multiple members of his platoon.
      
      d.  In another document dated 23 February 2006, it showed he was diagnosed with depression and with insomnia.  When the applicant was evaluated, he showed no excessive signs of sleepiness.  A definite diagnosis was not made; however, after his evaluation it was believed he might be displaying symptoms of paranoid schizophrenia; or depression with psychotic features; or a personality disorder, with psychotic features; or malingering.

	e.  Two medical reports, both dated 4 April 2006 show the applicant reported he had insomnia.  He stated he just missed his family and denied any illness or disease.  He stated he had difficulty sleeping during the previous several nights.  He stated he was having bad dreams related to IEDs (Improvised Explosive Devices) and his family.  He denied any suicidal ideations.

	f.  The remainder of the documents are authorization for the release of his personal information (3 pages); an information sheet for FHC Cumberland Hall, Hopkinsville, Kentucky; what appears to be an SOP (Standing Operating Procedure) for the use of restraints (6 pages); and a page related to a durable power of attorney for the State of Kentucky.  Some documents were duplicates of the above.

24.  There is no evidence, and the applicant has provided none to show he was referred to a Medical Evaluation Board for any of the complaints/medical issues he made to members of the medical community.  There is evidence the applicant's chain of command showed the proper concern for his physical and mental health; however, there is no evidence the medical community felt his symptoms were sufficiently serious to recommend his separation for any perceived mental or medical disabilities.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states, in effect, that he was always a good Soldier.  He states, in effect, he was denied an honorable discharge because of his depression over being in Iraq and the accidents which he experienced.  He adds that he believes the record is in error and he should now have his discharge upgraded to honorable.

2.  The overall quality of the applicant’s service was considered.  The evidence shows the highest rank and pay grade the applicant achieved was Specialist, E-4. The record contains no documentary evidence of acts of valor or achievement which would warrant special recognition and an upgrade of his undesirable discharge.  The evidence does show the applicant was awarded the Purple Heart for wounds he received as a result of the explosion of an IED while he served in Iraq.  This single event does not overcome and does not serve to mitigate the applicant’s misconduct.

3.  The record shows that the applicant received medical treatment for pain, depression and insomnia six times during the period 17 February through 6 April 2006.  At the time he was evaluated for insomnia and/or depression and for his outburst, a specific diagnosis was not arrived at by medical treatment personnel. Of the possibilities, it was believed he could be displaying symptoms of paranoid schizophrenia; or depression with psychotic features; or a personality disorder, with psychotic features; or malingering.

4.  For a period from 7 April through 27 April 2006, the applicant was not treated medically and there were no episodes of misconduct; however, the record shows that during the period from 28 April 2006 through 3 August 2006, the applicant received non-judicial punishment on four separate occasions – for willfully disobeying an NCO, for failing to go to his appointed place of duty, for attempting to strike an NCO, for assaulting a Specialist by running after him, and for being disrespectful in language and deportment towards an NCO.  For this misconduct, he was progressively reduced in rank from Specialist to Private.

5.  The applicant’s misconduct continued and on 22 August 2006, charges were brought against him.  The applicant voluntarily submitted a request for discharge for the good of the service, in lieu of trial by court-martial, under the provisions of Army Regulation 635-200, Chapter 10.

6.  In connection with such a discharge, the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Procedurally, the applicant was required to consult with defense counsel, and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt to the stipulated offenses under the UCMJ.  The evidence shows the applicant’s request for discharge under the provisions of AR 635-200, Chapter 10, for the good of the service, in lieu of trial by court-martial, was approved.

7.  The evidence shows that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The characterization of service for this type of discharge is normally under other than honorable conditions and the evidence shows that the applicant was aware of that prior to requesting discharge.

8.  The evidence shows the applicant applied to the ADRB for a review of his discharge and it was upgraded because it was believed the discharge issued was excessively harsh.

9.  The applicant now states he was denied an honorable discharge because of his depression over being in Iraq and the accidents which he experienced.  The evidence he submitted shows he was allegedly already experiencing insomnia and/or depression before his vehicle was hit by an IED explosion.  He was provided medical treatment; however, it appears that medical treatment personnel were not totally convinced he was being honest and in fact declined making definitive diagnoses of the applicant on one occasion even going so far as suspecting he was malingering.

10.  The evidence shows that the applicant was denied an honorable discharge not because he might have been feeling the effects of depression but because he conducted himself in such as manner as to have court-martial charges brought against him that could have resulted in a bad conduct or a dishonorable discharge.

11.  The applicant is encouraged to seek the counsel of Department of Veterans Affairs representatives in his geographical location to determine which of a wide array of benefits administered by that agency are available to him, to include his eligibility to participate in the MGIB Educational Program.  On the surface, it would appear that the applicant is not eligible to participate in the MGIB Educational Program due to the fact he did not complete a full 36 months of active duty service and he was not discharged with an honorable discharge; however, the final answer in this matter should come from the Department of Veterans Affairs.

12.  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.

13.  In view of the foregoing, there is no basis for granting the applicant's request for an upgrade of his under other than honorable conditions discharge.

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
ABCMR Record of Proceedings (cont)                                         AR20080000535



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET, 2ND FLOOR
ARLINGTON, VA  22202-4508