IN THE CASE OF:	

		BOARD DATE:	6 August  

		DOCKET NUMBER:  AR20090007010 


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 his under other than honorable conditions (UOTHC) discharge of 17 March 2008 be changed to an honorable discharge (HD) for medical reasons.  

2.  The applicant states, in effect, that while waiting for his medical board he was placed back with his company.  He claims that he was being harassed by his sergeant at night, and was physically attacked by other Soldiers in the showers.  He also states that due to the stress of being harassed and attacked by members of his unit, he went absent without leave (AWOL) for about 11 months and then returned to take care of the situation.

3.  The applicant provides the following documents in support of his application:  DD Form 214 (Certificate of Release or Discharge from Active Duty); Division Mental Health Memorandum, dated 10 August 2006; Electronic Mail (e-mail) Messages; 82nd Airborne Division Memorandum, dated 17 October 2006; Headquarters, 2nd Battalion, 508th Parachute Infantry Regiment Memoranda, dated 14 August 2006, 25 September 2006, and 16 October 2006; Request for Mental Health Evaluation; and DA Form 2823 (Sworn Statement).


CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show he enlisted in the Regular Army and entered active duty on 22 November 2005, and that he was trained in and awarded military occupational specialty (MOS) 11B (Infantryman).  

2.  The applicant's record shows that the highest grade he attained while serving on active duty was private first class (PFC).  It further shows that during his active duty tenure he earned the Global War on Terrorism Service Medal, 
Army Service Ribbon, and Parachutist Badge.  His record documents no acts of valor or significant achievement. 

3.  On 11 August 2006, the unit commander referred the applicant for a mental health evaluation.  He cited his reasons as the applicant's emotional/adjustment difficulties of nervousness, depression, fearfulness, stuttering, shyness, and problems with concentration.  The examining psychiatrist diagnosed the applicant with depression and personality disorder.  He stated the applicant was not considered mentally disordered.  However, he manifested a long-standing disorder of character, behavior, and adaptability that is of such severity so as to preclude adequate military service.  He also opined that the applicant's problem may not respond to individual and/or group treatment currently available in the Army nor would he respond to any attempt to rehabilitation in the command.  He further concluded the applicant meets the criteria for administrative separation for Personality Disorder.  He confirmed the applicant was capable of distinguishing right from wrong and adhering to the right.  He also found the applicant was responsible for his actions and possessed the mental and emotional capacity to understand and participate in a board, or other legal proceedings.  

4.  On 17 October 2006, the separation authority approved the applicant's discharge under the provisions of paragraph 5-13, Army Regulation 635-200, by reason of personality disorder with an HD.  

5.  On 18 October 2006, the applicant departed AWOL.  He was dropped from the rolls (DFR) of the organization on 18 November 2006.  His Official Military Personnel File (OMPF) contains a DD Form 616 (Report of Returnee of Absentee), which confirms he was apprehended by civil authorities and returned to military control on 10 November 2007.

6.  On 1 February 2008, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from on or about 18 October 2006 until being apprehended on or about 10 November 2007.
7.  On 28 February 2008, the applicant consulted legal counsel and was advised of the basis for the contemplated trial by court-martial, the effects of an UOTHC discharge, and of the rights available to him.  Subsequent to receiving legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  In his request for discharge, he acknowledged his guilt of the charge against him or of a lesser included offense therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.  He further confirmed that under no circumstances did he desire further rehabilitation because he had no desire to perform further military service.  He also acknowledged that if his discharge request was approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all as the Department of Veterans Affairs benefits, he could be deprived of his rights and benefits as a veteran under both Federal and State law, and he could encounter substantial prejudice in civilian life by reason of an UOTHC discharge. 

8.  On 7 March 2008, the separation authority approved the applicant's discharge request and directed the applicant receive an UOTHC discharge and that he be reduced to the lowest enlisted grade.  On 17 March 2008, the applicant was discharged accordingly.  The DD Form 214 issued to the applicant at the time confirms he was separated under the provisions of chapter 10, Army Regulation 635-200, for the good of the service-in lieu of trial by court-martial.  It further shows that he had completed a total of 1 year, 1 month, and 10 days of creditable active military service and that he had accrued 440 days of time lost due to being AWOL and confinement.  

9.  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 does allow the issue of a general, under honorable conditions discharge (GD) or an HD if the separation authority determines it is warranted based on the member's overall record of service; however, an UOTHC discharge is normally considered appropriate for members separated under this provision of the regulation.  

10.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.  Paragraph 5-13 provides guidance on separations by reason of personality disorder and states, in pertinent part, that a Soldier can be separated for personality disorder, not amounting to disability under Army Regulation 635-40, that interfered with assignment to or performance of duty.  

11.  Paragraph 5-13 of the enlisted separations regulation further states, in effect, that commanders would not separate by reason for personality disorder in lieu of disciplinary action solely to spare a Soldier who may have committed serious acts of misconduct for which harsher penalties may be imposed under the UCMJ.  It further stipulates, in pertinent part, that separation for personality disorder is not appropriate when separation is warranted under chapter 10 of this regulation, or Army Regulation 635-40 (disability/medical).  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should have been medically discharged was carefully considered.  However, by regulation, a Soldier could be administratively separated for personality disorder that interfered with his assignment or performance of duty, not amounting to disability under Army Regulation 635-40.   Although the evidence of record confirms the applicant initially had been approved for separation under the provisions of paragraph 5-13, by reason of personality disorder with an HD, this condition did not support his disability processing through the Army’s Physical Disability Evaluation System (PDES) for a medical discharge/retirement as evidenced by the diagnosis contained in the mental status evaluation completed on him during his separation processing.   

2.  The evidence of record further confirms that prior to the actual implementation of his approved personality disorder discharge, the applicant departed AWOL from his unit and remained away for 440 days before being apprehended and returned to military control.  As a result of this misconduct, his personality disorder discharge action was no longer valid, and he was appropriately charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  After consulting with defense counsel, he voluntarily requested discharge in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 

3.  The evidence of record also confirms the applicant was processed for separation in lieu of trial by court-martial at his own request, in order to avoid a trial by court-martial that could have resulted in him receiving a punitive discharge.  The separation authority approved his request and appropriately directed that he receive an UOTHC, which was consistent with regulatory policy in effect at the time, and accurately reflected the applicant's overall record of service.  


4.  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:

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)                                         AR20090007010



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ABCMR Record of Proceedings (cont)                                         AR20090007010



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