BOARD DATE:	  8 October 2009

		DOCKET NUMBER:  AR20090007425 


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 that his general discharge be upgraded to honorable.

2.  The applicant states that the lack of documentation showing he threatened and attacked a noncommissioned officer (NCO) and an enlisted Soldier shows that there was a cover up in his case.  He believes that if he had been brought to court-martial, he would have been exonerated of the charges and would have received the mental health treatment he needed.

3.  The applicant adds that he was not in control of his actions when he attacked the NCO with a knife, he was not tried for his actions, and he has now submitted documents to prove he had a pattern of mental and emotional defects and sought psychiatric help.

4.  The applicant provides documents which he lists in 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 AR20070018097, on 6 May 2008.

2.  The applicant's statement that the lack of documentation showing he threatened and attacked an NCO and an enlisted Soldier shows that there was a cover up in his case, and that if he had been brought to court-martial, he would have been exonerated of the charges and would have received the mental health treatment he needed is new evidence which requires the Board reconsider his request.

3.  The applicant entered active duty on 23 August 1983 and served as a cook.

4.  The applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice as follows:

	a.  on 11 April 1984 for being absent without leave (AWOL);

	b.  on 17 May 1984 for failure to go to his place of duty; and 

	c.  on 7 August 1984 for being AWOL. 

5.  On 14 August 1984, the applicant's unit commander initiated separation actions under the provisions of Army Regulation 635-200, chapter 13 for unsatisfactory performance.  The commander indicated that the applicant had received NJP on three occasions including being absent without leave on two occasions.  The commander also listed seven negative counseling statements in less than a month for various reasons to include fighting, being late for duty, failure to report for duty, and for poor duty performance.

6.  On 14 August 1984, his unit commander also requested that the requirement for a rehabilitation transfer be waived.  The unit commander stated that the applicant had been a constant burden on the chain of command and showed no desire to improve.

7.  After consulting with counsel and being advised of his rights and options the applicant acknowledged the proposed separation action under the provisions of Army Regulation 635-200, chapter 13.  He acknowledged he had been advised he understood his rights under the Uniform Code of Military Justice, that he could receive an under other than honorable conditions (UOTHC) discharge which would deprive him of many or all of his benefits as a veteran, that he could expect to experience substantial prejudice in civilian life if he received a general discharge.  The applicant waived his rights to a board of officers and to make a personnel statement.

8.  On 16 August 1984, the discharge authority approved the separation action, waived the rehabilitation requirements, and directed the applicant receive a general discharge.

9.  The applicant was discharged on 6 September 1984 for unsatisfactory performance with a general discharge.  He had completed 1 year and 7 days of creditable service with 7 days of lost time.

10.  The medical records submitted by the applicant consist of a Standard Form (SF) 600 (Chronological Record of Medical Treatment) which shows the applicant was seen at a medical clinic on 15 February 1984 for chest pain and he was prescribed aspirin.  The same SF 600 shows that on 16 April 1984 he was seen at the medical clinic but this form does not specify what he was seen for nor what treatment was provided, if any.  This entry was signed by an enlisted Soldier in the grade of specialist who identified himself as a behavioral science specialist.  The third medical record submitted by the applicant was the last page of the applicant's separation physical examination wherein the applicant entered that he was "just confused then frustrated."

11.  On 28 January 1993, the Army Discharge Review Board (ADRB) denied the applicant's request to upgrade his discharge and did not deem it appropriate to change his narrative reason for separation.

12.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier. 

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant's commander initiated action to discharge the applicant due to his history of misconduct, being AWOL (twice) and for failure to go to his place of duty.  Such a record of misconduct certainly warranted a general discharge. 

2.  It would appear that the applicant is attempting to show that he was suffering from emotional or psychiatric problems and, therefore, should not be held responsible for his misconduct.  In this regard, the applicant has not submitted any evidence to show that he suffered from a mental disease or defect while on active duty nor has he shown that he was unable to appreciate the nature and quality of the wrongfulness of his acts.

3.  The medical records submitted by the applicant only show that he was seen at a military medical clinic for unknown reasons on 16 April 1984, and then stated on his separation physical examination that he was confused then frustrated.  Neither of these documents show he suffered from a mental disease or defect or that the applicant was unable to appreciate the nature and quality of the wrongfulness of his acts.

4.  In view of the foregoing, there is no basis for granting the applicant's 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 AR20070018097, dated 6 May 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)                                         AR20090007425



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090007425



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1