IN THE CASE OF:	  

		BOARD DATE:	  10 September 2009

		DOCKET NUMBER:  AR20090004931 


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, reconsideration of his previous request for upgrade of his reentry eligibility (RE) code from RE-4 to RE-1.  He also requests upgrade of his under other than honorable conditions discharge because of his service in Iraq.

2.  The applicant states, in effect, that Lieutenant Colonel P-----a J. H----s prescribed the antidepressant Paxil for him.  He also states, in effect, that taking Paxil made his "decision making all messed up and it snowballed from there."

3.  The applicant submitted a self-authored statement, dated 5 February 2009; a copy of his Patient Order List, dated 21 June 2004; a copy of a letter from his mayor; a copy of a character reference from his former commander; a copy of his Boy Scout Eagle Certificate, a copy of a Certificate of Achievement; and a copy of a Certificate of Completion in support of this application. 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records, which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080015677, dated 29 January 2009.

2.  The applicant provided a letter from his mayor; a character reference from his former commander; his Boy Scout Eagle Certificate; a Certificate of 

Achievement; and a Certificate of Completion which were presented in the 
previous Record of Proceedings (ROP) and, therefore, are not considered new evidence and will not be considered in this case.  However, he provided his Patient Order List, dated 21 June 2004, which is considered new evidence and merits consideration by the Board.

3.  The applicant also presents a new issue, requesting an upgrade of his discharge due to his service in Iraq, which will be considered by this Board.

4.  The applicant's record shows that he enlisted in the Regular Army (RA) on
22 October 2002. 

5.  Item 18 (Remarks) of his DD Form 214 shows the entry "Soldier was deployed in support of Operation Iraqi Freedom with duty at Habbaniyah [Iraq] from 08 April 2003 to 07 April 2004."

6.  Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) shows the applicant was awarded the National Defense Service Medal, Global War on Terrorism Expeditionary Medal, Global War on Terrorism Service Medal, and the Army Service Ribbon.

7.  During the period 1 to 15 June 2004, the applicant was counseled seven times for failing to obey a lawful order and six incidents of failing to be at his assigned place of duty.

8  The applicant's record contains a copy of a DA Form 4856 (Developmental Counseling Form), dated 9 June 2004, which states in the "Plan of Action" section that he would be referred for mental evaluation counseling.

9.  The applicant submitted a copy of a Patient Order List, dated 21 June 2004, which shows that he was prescribed Paroxetine (Paxil).

10.  On 9 July 2004, court-martial charges were preferred against the applicant for three specifications of failing to go at the time prescribed to his appointed place of duty, two specifications of being absent without leave (AWOL), three specifications of disobeying a lawful order, and wrongfully using marijuana.

11.  On 9 July 2004, the applicant submitted a request for discharge for the good of the service - in lieu of court-martial.  In that request the applicant acknowledged that he consulted with appointed counsel for consultation who fully advised him of the nature of his rights under the Uniform Code of Military Justice (UCMJ), the facts which must be established by competent evidence beyond a 
reasonable doubt to sustain a finding of guilty, the possible defenses which appear to be available, and the maximum permissible punishment if found guilty. The applicant also acknowledged that he was informed that he could request a medical physical examination prior to discharge. 

12.  On 13 July 2004, the separation authority directed that the applicant be discharged with an under other than honorable conditions discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), chapter 10, by reason of in lieu of trial by court-martial.

13.  On 21 July 2004, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to him at the time confirms he was discharged under the provisions of Army Regulation 635-200, chapter 10.  He was also issued an RE-4 code.  

14.  On 17 October 2007, the Army Discharge Review Board (ADRB) denied the applicant's request for upgrade of his discharge.

15.  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.

16.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

17.  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.
18.  Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes based on their service records or the reason for discharge.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the U.S. Army Reserve (USAR).  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes.

19.  The code RE-4 applies to persons not qualified for continued Army service, and the disqualification is not waivable.  Persons who have been discharged under the provisions of chapter 10 of Army Regulation 635-200 are so disqualified.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence of record which shows that the applicant was prescribed Paxil prior to his counseling and charges against him.  Evidence shows that the applicant was seen by a mental health professional and prescribed Paxil after he committed these offenses.  There is no evidence of record which shows the applicant informed his chain of command or his appointed counsel that he was prescribed Paxil and its effects on him prior to his discharge.  Additionally, there is no evidence in the available record and the applicant has not provided evidence showing that his acts of indiscipline were a result of taking Paxil.

2.  The applicant was advised by appointed counsel for consultation of the nature of his rights under the UCMJ, the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty, the possible defenses which appear to be available, and the maximum permissible punishment if found guilty.  After those facts were explained to the applicant, he opted not to plead his case and to voluntarily request discharge in lieu of court-martial.

3.  Although the applicant served successfully in Iraq, based on his disciplinary record, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is no basis to grant either an honorable or a general discharge.

4.  The evidence of record confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation.  "RE-4" applies to persons who are permanently disqualified for continued Army service.  By regulation, the "RE-4" code assigned to the applicant was the proper code to 
assign members separating under the provisions of Army Regulation 635-200, chapter 10.  All requirements of law and regulation were met and the rights of the applicant were protected throughout the separation process.  As a result, the "RE-4" code and the narrative reason for separation were and still are appropriate.

5.  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 requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ___X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 to amend the decision of the ABCMR set forth in Docket Number AR20080015779, dated 29 January 2009.

2.  The evidence presented also does not demonstrate the existence of a probable error or injustice concerning his new issue that his discharge be upgraded because of his service in Iraq.  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)                                         AR20090004931



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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