IN THE CASE OF:	  

		BOARD DATE:	        14 JULY 2009

		DOCKET NUMBER:  AR20090004892 


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, through his Congresswoman, that his discharge be upgraded.

2.  The applicant states, through his Congresswoman, that he believes his discharge is unjust and that the separation authorities did not take into consideration his medical conditions and his personal situation within the Army.

3.  The applicant provides, through his Congresswoman, copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 26 September 2003; a personal statement; a statement from a licensed clinical social worker, dated 27 August 2002; and numerous copies of medical evaluation forms from his official military medical records.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 18 April 2002.  Records do not show that he completed basic and advanced individual training nor was he awarded a military occupational specialty.

2.  On 27 August 2002, a licensed clinical social worker in the state of Georgia stated, in effect, that he consulted with the applicant.  The applicant reported to him that he is extremely depressed and that he wants out of the Army.  During his conversation with the applicant, the social worker determined that the applicant was probably suffering from depression due to depressed mood, crying spells, difficulty sleeping, and suicidal ideation.  He said he recommended to the applicant that he return to his unit and then request an early discharge.

3.  On 7 August 2003, court-martial charges were preferred against the applicant for being absent without authority (AWOL) from on or about 6 September 2002 to on or about 4 August 2003 when he surrendered to military authorities.

4.  On 7 August 2003, 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 Uniform Code of Military Justice, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  The applicant then voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

5.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser-included offense, that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, 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 (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He elected not to submit statements on his own behalf and acknowledged that he received a copy of his request for discharge to include all enclosures.

6.  On 4 September 2003, the applicant's company commander recommended that the applicant be discharged in lieu of trial by court-martial.  He stated that based on the applicant's previous record, he expected minimal rehabilitative effects and believed a discharge would be best for all concerned.  He further recommended discharge under other than honorable conditions.

7.  The appropriate authority approved the applicant's request for discharge in lieu of trial by court-martial on an unknown date.  The approval authority directed that the applicant be reduced to private/pay grade E-1 and that he be discharged under other than honorable conditions.

8.  On 26 September 2003, the applicant was discharged under the provisions of chapter 10 of Army Regulation 635-200 by reason of conduct triable by court-martial.  Records show he completed 6 months and 7 days of net active service and that his service characterization was under other than honorable conditions.  He had 332 days of time lost due to AWOL.

9.  On 11 April 2008, the Army Discharge Review Board (ADRB) denied the applicant's request to upgrade his discharge.  The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as under other than honorable conditions.

10.  In support of his application, the applicant provided a personal statement that says, in effect, that he sought medical assistance for knee pain at least three times and that the medical doctors only prescribed pills for his pain.  He states that he felt the doctors were looking down at him and thought that he was trying to get out of the service.  He states he spoke to an Army Chaplain about how he felt, especially about how the doctors made him feel.  He went to another military installation while on leave and the doctors there took x-rays and said that they didn't see any problems with his bones, but they were grinding and should not be doing that.  He further states that he contacted his unit and spoke with an officer who told him to proceed with his assignment instructions to Korea.  He admits he went AWOL from his leave status because he did not get information, instruction, or one specific person or answer to guide him in the right direction.  He concludes by saying he regrets his decision and that he is ashamed.  When he reported to Fort Knox the staff at the special processing unit informed him he actually was never AWOL and rushed him through the separation process and did not explain in detail the effect his discharge characterization would have on his life outside of the military.

11.  As further evidence of his medical condition, the applicant submitted multiple documents from his military medical records that show he sought medical treatment for pain in his knees (grinding) and lower back.  One doctor's clinical notes shows that the applicant had strained his knees, he provided medication to relieve the pain, recommended the patient consult with physical therapy or the orthopedic departments, and concluded by saying the applicant would benefit from a physical fitness profile for 3 months.

12.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the administrative separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included 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 request must include the Soldier's acknowledgement that the Soldier understood the elements of the offense(s) charged and that the Soldier was guilty of the charge(s) or of a lesser included offense therein contained which also authorized the imposition of a punitive discharge.  A discharge under other than honorable conditions was normally considered appropriate.
13.  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.

14.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge 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.

15.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded to a general discharge.

2.  The evidence of record shows that the applicant was AWOL for 332 days which was a violation of the Uniform Code of Military Justice and triable by court-martial.

3.  The applicant voluntarily requested discharge under the provisions of Army Regulation 632-200, chapter 10, in lieu of trial by court-martial.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  He also acknowledged that he could receive an under other than honorable conditions discharge, and that he may be ineligible for many or all Army benefits to include benefits administered by the VA.  The record contains no indication of procedural or other errors that would tend to jeopardize his rights.  Furthermore, the quality of the applicant’s service did not meet the standards of acceptable conduct and performance expected of Army personnel.

4.  The evidence the applicant submitted supports his claim that he sought medical treatment for his painful knees and lower back, and that a nonmilitary social worker determined the applicant probably suffered from depression.  However, there are no military medical records to support this contention.

5.  However, even if the applicant had submitted evidence to show he suffered from depression, it would not invalidate his discharge.

6.  Therefore, the evidence of record and the applicant's supporting evidence show no reason or justification as to justify correction of a military record.  The applicant must, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

7.  In view of the foregoing, there is insufficient basis to upgrade the applicant's discharge to either an honorable or to a general, under 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.




      ________XXX_________________
                 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)                                         AR20090004892



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ABCMR Record of Proceedings (cont)                                         AR20090004892



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