IN THE CASE OF:		  

		BOARD DATE:	  18 February 2009

		DOCKET NUMBER:  AR20080017605 


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, that the Under Other Than Honorable Conditions (UOTHC) discharge of her former husband, the Former Service Member (FSM), which was upgraded to fully honorable by the Army Discharge Review Board (ADRB) under the authority of Title 10, Section 1553, be further upgraded by the Army Board for Correction of Military Records (ABCMR) under the authority of Title 10, Section 1552.

2.  The applicant states, in effect, that she can not receive Department of Veterans Affairs (VA) benefits unless the ABCMR also upgrades the FSM's discharge.

3.  The applicant provides her marriage certificate, a letter to her elected representative, and documents showing that her mortgage is in default.

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted on 27 December 1988, was awarded the military occupational specialty of indirect fire infantryman, and was promoted to pay grade E-7.

2.  The FSM departed absent without leave (AWOL) on 24 October 2004 and was returned to military control on 30 August 2006 after he was apprehended.

3.  On 20 November 2006, a Sanity Board Evaluation was conducted on the FSM.  In that evaluation the Sanity Board found that the FSM suffered from Bipolar II Disorder (Recurrent Major Depressive Episode With Hypomanic Episodes, Most Recent Episode Depressed), Moderate to Severe Without Psychotic Features, and Post-Traumatic Stress Disorder, Chronic.

4.  In the Sanity Board Evaluation, the applicant was contacted who stated that the FSM changed after he returned from Afghanistan in 2003.  When he returned he demonstrated anger and irritability, was smoking, drinking and looking at internet pornography.  He would become extremely angry, yelling at her and the children, pick up and throw furniture, pull doors off their hinges, punched out car windows with his fist, punched holes in walls, cut himself with a knife, and put a gun to his head threatening to shoot himself.  

5.  In the Sanity Board Evaluation psychiatric history, it was stated that the FSM's psychiatric problems began in 1997 when his then wife was diagnosed with metastasized breast cancer.  After a long battle, his then wife died on 27 February 2001.  During her fatal decline, the FSM started feeling very depressed, he began having trouble initiating and maintaining sleep, he lost interest in doing things he enjoyed, and he began isolating.

6.  In the Sanity Board Evaluation the FSM's combat experience in Panama during Operation Just Cause and in Afghanistan was noted.

7.  In the Sanity Board Evaluation it was determined that the FSM had sufficient mental capacity to understand the nature of the proceedings against him and to conduct or cooperate intelligently in his own defense.

8.  On 29 November 2006, the FSM requested discharge in lieu of court-martial for the good of the service.  In that request he admitted guilt of the court-martial charge against him or of a lesser included offense which also authorized the imposition of a bad conduct or dishonorable discharge.  The FSM also indicated that he was aware that he could be given a discharge UOTHC and of the effects of a discharge UOTHC.

9.  The FSM's request was approved by the appropriate authority.  Accordingly, he was discharged UOTHC on 11 December 2006 under the provision of Army Regulation 635-200, Chapter 10.  The DD Form 214 he was issued shows that his awards and decorations include the Meritorious Service Medal, Army Commendation Medal, six Army Achievement Medals, four Army Good Conduct Medals, Armed Forces Expeditionary Medal, Humanitarian Service Medal, Combat Infantryman Badge, Senior Parachutist Badge, Air Assault Badge, and Drill Sergeant Badge.

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 submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

11.  On 4 March 2008, the ADRB upgraded the FSM's discharge UOTHC to fully honorable.  The ADRB did not change the reason and authority for his discharge.

12.  The Code of Federal Regulations, Title 38, Volume 1 (Revised as of July 1, 2004), Section 3.12, Character of discharge, states in pertinent part that an honorable or general discharge issued on or after October 8, 1977 by a discharge review board established under 10 U.S.C. 1553 (the ADRB), sets aside a bar to Veterans benefits imposed for acceptance of an undesirable discharge to escape trial by general court-martial; mutiny or spying; an offense involving moral turpitude which includes, generally, conviction of a felony; willful and persistent misconduct which includes a discharge under other than honorable conditions; and homosexual acts involving aggravating circumstances or other factors affecting the performance of duty.  However, an honorable or general discharge issued on or after October 8, 1977 by a discharge review board established under 10 U.S.C. 1553 (the ADRB), does not set aside a bar to Veterans benefits imposed for Soldiers who were discharged as a conscientious objector who refused to perform military duty, wear the uniform, or comply with lawful order of competent military authorities; by reason of the sentence of a general court-martial; resignation by an officer for the good of the service; as a deserter; as an alien during a period of hostilities, where it is affirmatively shown that the former service member requested his or her release; and by reason of a discharge under other than honorable conditions issued as a result of an absence without official leave (AWOL) for a continuous period of at least 180 days.

13.  The Code of Federal Regulations, Title 38, Volume 1 (Revised as of July 1, 2004), Section 3.12, Character of discharge, states in pertinent part that an honorable discharge or discharge under honorable conditions issued through a board for correction of records established under authority of 10 U.S.C. 1552 (the ABCMR) is final and conclusive on the Department of Veterans Affairs.  The action of the board sets aside any prior bar to Veterans benefits.


DISCUSSION AND CONCLUSIONS:

1.  The FSM's accomplishments and dedication to his country is evident by his numerous awards and decorations.

2.  While the FSM was determined to be sane during a Sanity Board Evaluation, he was also diagnosed with Bipolar II Disorder (Recurrent Major Depressive Episode With Hypomanic Episodes, Most Recent Episode Depressed), Moderate to Severe Without Psychotic Features, and Post-Traumatic Stress Disorder, Chronic.  Given the stressors of those two mental conditions, while the FSM was sane, his decision making ability was without doubt seriously impaired.

3.  Since it appears by the FSM's service record prior to his going AWOL and his numerous awards and decorations that he would not have gone or remained AWOL if he was capable of making unimpaired decisions, it would be in the interest of justice to grant him the benefit of any doubt and upgrade his discharge UOTHC.

4.  While the FSM's discharge has already been upgraded to fully honorable by the ADRB, that upgrade does not provide his family Veterans benefits under The Code of Federal Regulations, Title 38, Volume 1.  Such a denial of benefits is an injustice which can only be corrected by the ABCMR also upgrading the FSM's discharge.  However, since the ADRB has already upgraded the FSM's discharge to fully honorable, an upgrade by the ABCMR can only be accomplished by correcting his now upgraded (by the ADRB) DD Form 214, Item 25, Separation Authority, to add "and Title 10, USC, Section 1552."

BOARD VOTE:

___X____  ___X____  ___X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by 
amending the DD Form 214 issued to him which reflects the ADRB upgraded characterization of service, Item 25, Separation Authority, to add "and Title 10, USC, Section 1552."




      _______ _ 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)                                         AR20080017605





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ABCMR Record of Proceedings (cont)                                         AR20080017605



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