IN THE CASE OF:	  

		BOARD DATE:	  15 January 2009

		DOCKET NUMBER:  AR20080017335 


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, in effect, an upgrade of his under other than honorable conditions (UOTHC) discharge.

2.  The applicant states, in effect, that he feels his UOTHC discharge is inequitable in light of his short period of service and his earned awards.  He also states that he was discharged 11 months prior to expiration term of service (ETS) for the mitigating factor of anxiety, which he suffers as a result of his service in Iraq.  He states that he was prescribed medication by a military doctor for Post Traumatic Stress Disorder (PTSD) and that he still suffers from it today.

3.  The applicant provides no documentary evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he enlisted in the Regular Army and entered active duty on 9 January 2002, and was trained in, awarded, and served in  military occupational specialty (MOS) 92F (Petroleum Supply Specialist).  

2.  On 11 July 2002, the applicant was issued a General Officer Memorandum of Reprimand (GOMOR) for driving under the influence (DUI) of alcohol on 3 July 2002.  The applicant acknowledged receipt of the GOMOR and elected not to submit a rebuttal.  


3.  On 28 February 2005, a Charge Sheet (DD Form 458) was prepared preferring court-martial charges against the applicant for three specifications of violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being absent without leave (AWOL) from on or about 17 December 2004 to on or about 19 January 2005, failing to go at the time prescribed to his appointed place of duty on or about 27 January 2005, and for being AWOL from on or about 
21 to on or about 24 February 2005; and for violating Article 112a of the UCMJ by wrongfully using cocaine on or about 21 January 2005.

4.  On 1 March 2005, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an UOTHC discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Chapter 10, Army Regulation 635-200.  

5.  In his request for discharge, the applicant acknowledged his understanding that if he received an UOTHC discharge, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also indicated that he understood he could face substantial prejudice in civilian life because of an UOTHC Discharge.  

6.  On 3 March 2005, the separation authority approved the applicant’s request for discharge and directed that he receive an UOTHC discharge under the provisions of chapter 10, Army Regulation 635-200.  On 11 March 2005, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time confirms he completed a total of 3 years and 29 days of creditable active military service and he accrued 33 days of time lost due to AWOL.  

7.  The applicant's DD Form 214 also shows he completed 11 months and 7 days of foreign service and he earned the Army Achievement Medal, Army Commendation Medal, Global War on Terrorism Expeditionary Medal, Global War on Terrorism Service Medal, National Defense Service Medal, Army Service Ribbon, Overseas Service Bar (2nd Award), Air Assault Badge, and the Driver and Mechanic Badge with Driver-W Bar.

8.  The applicant's record is void of any medical treatment records, or other documents that indicate he was ever treated for a disabling medical or mental condition that would have warranted his separation processing through medical channels during his active duty tenure.
9.  On 14 December 2007, the Army Discharge Review Board (ADRB), after carefully considering the applicant's military records and all other available evidence, determined the applicant was properly discharged and as a result denied the applicant's request for an upgrade of his discharge.

10.  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 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.  The regulation stipulates that the separation authority may authorize a general, under honorable conditions discharge (GD) or honorable discharge (HD) to members separated under the provisions of Chapter 10 if it is supported by the member’s overall record of service; however, an UOTHC discharge normally is appropriate for Soldiers who are discharged in lieu of trial by court-martial.

11.  Army Regulation 635-200, governs the policies and procedures for the separation of enlisted personnel.  Paragraph 3-7a, provides that an honorable discharge (HD) 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

12.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge (GD) 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 CONCLUSIONS:

1.  The applicant’s contentions that his UOTHC discharge is inequitable and should be upgraded based on his overall record of service and because he suffers from a PTSD were carefully considered.  However, the evidence of record confirms the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  After consulting with legal counsel, the applicant voluntarily requested discharge from the Army in lieu of trial by 
court-martial.  In doing so, he admitted guilt to offenses under the UCMJ that authorized a punitive discharge.  All requirements of law and regulation were met 
and the applicant’s rights were fully protected throughout the separation process. 
2.  Given the applicant's extensive disciplinary history, his overall record of service was not sufficiently meritorious to support the issuance of a GD or HD by the separation authority at the time of his discharge, nor does it support an upgrade at this time.  Further, his record is void of any medical treatment records indicating he suffered from a physically or mentally disqualifying condition that would have contributed to the misconduct that resulted in his discharge, and he has failed to provide independent evidence that would support his claim that he suffers from a PTSD that was a mitigating factor for his misconduct.  As a result, there is no an insufficient evidentiary basis to support granting the requested relief. 

3.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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 request.

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)                                         AR20080017335



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ABCMR Record of Proceedings (cont)                                         AR20080017335



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