IN THE CASE OF:	  

		BOARD DATE: 	        14 June 2009

		DOCKET NUMBER:  AR20090004965 


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 reconsideration of the Board's denial of his request to upgrade his under other than honorable conditions (UOTHC) discharge to an honorable discharge.

2.  The applicant states, in effect, that he was not capable of making the right decisions at the time he requested discharge because of severe emotional and mental problems.  He claims that he was not given proper treatment for those conditions while he was on active duty.  He adds that it is the responsibility of the Board's staff to find documentation to show that he was deemed mentally responsible during his discharge proceedings and in the absence of such documents, the Board is required to find in his favor and upgrade his discharge.

3.  The applicant provides a copy of the Board's previous consideration in support of his request.

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 AR20070014535, dated 14 February 2008.



2.  The applicant's contention that the Board must conclude that he was not mentally competent in the absence of documents to show otherwise is a new argument.  The availability of the applicant's Record of Trial (ROT) is also new evidence which requires the Board to reconsider the applicant's request.

3.  The applicant's military records show that he enlisted in the Regular Army on 1 May 1996, he departed absent without leave (AWOL) on 4 February 1997, and he remained AWOL until his transfer from the Department of Veterans Affairs Medical Center to Walter Reed Army Medical Center (WRAMC) on 2 March 1997.

4.  Special Court-Martial Order Number 4, dated 20 August 1997, shows the applicant was charged with being AWOL from 4 to 13 February 1997; larceny of private property of a value of $50.00; and writing a total of 30 worthless checks.  The court-martial order shows that while the applicant was arraigned, the proceedings were terminated because of the applicant's request for discharge in lieu of court-martial for the good of the service.

5.  While the applicant's discharge packet is not contained in his records, he was issued an UOTHC discharge, on 19 June 1997, under the provisions of Army Regulation 635-200 (Enlisted Separations), Chapter 10.

6.  Army Regulation 635-200, Chapter 10 of the version in effect at the time, states that a Soldier who has committed an offense or offenses, the punishment for which, under the Uniform Code of Military Justice (UCMJ) and the Manual for Court-Martial (MCM) includes a bad conduct or dishonorable discharge, may submit a request for discharge in lieu of trial by court–martial.  The discharge request may be submitted after court–martial charges are preferred against the Soldier, or, where required, after referral, until final action by the court–martial convening authority. A Soldier who is under a suspended sentence of a punitive discharge may likewise submit a request for discharge in lieu of trial by court–martial.  In this chapter it is specified that a medical examination is not required but may be requested by the Soldier.  If a medical examination is conducted, it must also have a mental status evaluation.

7.  In the previous consideration of the applicant's case, the Record of Proceedings cited Army Regulation 635-200, Chapter 10 as requiring that a mental status evaluation be performed.

8.  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.

9.  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.

10.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR) 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 has not submitted any evidence to show that he was mentally incompetent when he requested discharge in lieu of trial by court-martial.

2.  It is reasonable to believe that since the applicant was returned to military control at WRAMC, if he was mentally incompetent he would have been processed accordingly at that time.  Therefore, it must be presumed that the applicant was in fact mentally competent at the time he requested discharge.

3.  The original Record of Proceedings was incorrect when it was stated that a mental status evaluation was required when processing a Soldier for separation under Army Regulation 635-200, Chapter 10.  The regulation in effect at the time did not require a mental status evaluation.  However, it could be requested by the Soldier pending separation.  It must be presumed that the applicant either did not request a mental status evaluation or he was determined to be mentally competent based on the acceptance of his request for discharge.

4.  Since there is no evidence to support the applicant's contention that he was mentally incompetent, there is no basis for granting his 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 to amend the decision of the ABCMR set forth in Docket Number AR20070014535, dated 14 February 2008.




      _______ _   _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)                                         AR20090004965



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ABCMR Record of Proceedings (cont)                                         AR20090004965



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