IN THE CASE OF:	  

		BOARD DATE:	  27 October 2009

		DOCKET NUMBER:  AR20090009062 


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 narrative reason for separation be changed.

2.  The applicant essentially states that his general discharge under honorable conditions was upgraded due to his faithful and honorable combat service and his diagnosis of post-traumatic stress disorder (PTSD) while in service [the applicant actually had his discharge under other than honorable conditions upgraded to a general discharge under honorable conditions].  He also claims that he cannot receive health care or compensation from the Department of Veterans Affairs (DVA) because his narrative reason for separation was not changed when his discharge was upgraded. 

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty); a letter, dated 29 October 2007 [which appears should have been dated 29 October 2008], from the Army Review Boards Agency Support Division in St. Louis, Missouri; a letter, dated 2 October 2008, from the Army Discharge Review Board (ADRB); his ADRB Case Report and Directive, dated 
1 October 2008; a letter, dated 10 March 2009, from the DVA Regional Office in Pittsburgh, Pennsylvania; a Medical Command (MEDCOM) Form 699-R (Report of Mental Status Evaluation), dated 14 July 2007; an undated Standard Form 509 (Medical Record - Progress Notes); and a DA Form 4700 (Medical Record - Supplemental Medical Data) in support of this application.



CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that he enlisted in the Regular Army on 24 June 2003.  He completed initial entry training and was awarded military occupational specialty 15H (Aircraft Pneudraulics Repairer).  His overseas service included service in Germany and deployments to Afghanistan from 
13 February 2005 to 28 February 2006 and Lebanon from 2 September 2006 to 28 October 2006.

2.  On 12 June 2007, the applicant accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using cocaine between on or about 5 April and 12 April 2007, and wrongfully using tetrahydrocannabinols (THC) between on or about 12 March and 12 April 2007.  His punishment consisted of a reduction in rank and pay grade from specialist/
E-4 to private/E-1, a forfeiture of $650.00 pay for 2 months, and restriction for 
45 days, which was all suspended but later vacated.  

3.  On 30 November 2007, the applicant was discharged under the provisions of Chapter 10 (Discharge in Lieu of Trial by Court-Martial), Army Regulation
635-200 (Active Duty Enlisted Administrative Separations) with an under other than honorable conditions discharge after charges were preferred against him for absenting himself without authority from his unit on or about 14 June and remaining so absent 9 July 2007, missing movement through design on or about 15 July 2007, and wrongfully using marijuana between on or about 21 July and 28 August 2007.  

4.  The DD Form 214 that he was issued at the time of discharge shows he was discharged under other than honorable conditions.  Item 28 (Narrative Reason for Separation) of this document shows an entry of "In Lieu of Trial by Court-Martial."

5.  On 1 October 2008, the ADRB upgraded the applicant's discharge under other than honorable conditions to a general discharge under honorable conditions, but determined that his narrative reason for separation was proper and equitable and voted not to change it.

6.  The applicant provided a Report of Mental Status Evaluation, dated 14 July 2007, which shows he was diagnosed with adjustment disorder with depressed mood, PTSD, poly-substance abuse for cocaine, THC, and EtOH [an abbreviation for ethanol, i.e., alcohol].  This evaluation also determined the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right, and he had the mental capacity to understand and participate in administrative/board proceedings.  The applicant was also cleared psychiatrically for any administrative action deemed appropriate by his command.

7.  A Sanity Board Evaluation convened on 22, 24, and 25 October 2007 determined that the applicant did not have a severe mental disease at the time of his alleged criminal conduct, and he was able to appreciate the nature and quality or wrongfulness of his conduct.  It also determined that the applicant had the mental capacity to understand the nature of the proceedings and the seriousness of the charges against him and to cooperate intelligently in his own defense.

8.  Army Regulation 635-5 (Personnel Separations - Separation Documents) provides guidance on the preparation of the DD Form 214.  This regulation states that the narrative reason for separation is based on regulatory or other authority.

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.  A discharge under other than honorable conditions is normally considered appropriate; however, the separation authority may direct a General Discharge Certificate, if such is merited by the member's overall record during the current enlistment.  

10.  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.  This 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 narrative reason for separation should be changed.

2.  The fact that the applicant was diagnosed with PTSD and other issues is truly regrettable; however, competent medical authority psychiatrically cleared him for any administrative action deemed appropriate by his command.  A Sanity Board Evaluation also determined that he did not have a severe mental disease at the 
time of his alleged criminal conduct, and he was able to appreciate the nature and quality or wrongfulness of his conduct.  He was also determined to have had the mental capacity to understand the nature of the proceedings and the seriousness of the charges against him and to cooperate intelligently in his own defense.

3.  The applicant's claim that he cannot receive health care or compensation from the DVA because his narrative reason for separation was not changed when his discharge was upgraded was noted.  However, the Army Board for Correction of Military Records does not grant relief solely for the purpose of making an applicant eligible for benefits. 

4.  The evidence provided by the applicant was carefully considered.  However, 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.

5.  It is clear that the applicant was charged with the commission of multiple offenses punishable under the UCMJ with a punitive discharge.  It is also clear that he voluntarily (emphasis added) requested discharge from the Army in lieu of trial by court-martial.  As he did not provide any evidence which shows that any requirements of law and regulation were not met or that his rights were not fully protected throughout the separation process, regularity must be presumed in this case.  Additionally, while the ADRB found it fit to upgrade the characterization of his service from under other than honorable conditions to general, under honorable conditions, it appropriately determined that his narrative reason for separation was both proper and equitable.

6.  The applicant's narrative reason for separation was based on his discharge under the provisions of Chapter 10, Army Regulation 635-200 due to his voluntary request for discharge in lieu of trial by court-martial.  As his DD Form 214 accurately reflects this as his narrative reason for his separation, there is no basis for changing it.  In view of the foregoing, there is no basis for granting relief to the applicant in this case.  

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)                                         AR20090009062



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ABCMR Record of Proceedings (cont)                                         AR20090009062



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