IN THE CASE OF:	

		BOARD DATE:	  08 April 2010

		DOCKET NUMBER:  AR20090016985 


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 that his under other than honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states that upon his arrival in Iraq his wife had a miscarriage.  She admitted depression and spoke of suicidal thoughts in her electronic mail 
(e-mail).  He states he was very upset about losing his child and was visibly distracted by his concern for his wife's well being, so he requested early mid-tour leave under emergency circumstances to go back to the States and help his [active duty] wife get stabilized while getting her to speak with a mental health doctor.  He states he only accepted the chapter 10 discharge because he was informed by his defense counsel that although his counsel was confident he would not be convicted on any charges that had been alleged, he would sit in jail for approximately 10 months while waiting for the trial to begin.  He states his counsel informed him that the command admitted they were hoping that by keeping him in civilian jail amongst a rough crowd, he would readily agree to a discharge under other than honorable conditions.  He states that given the two options available to him, he would not characterize his decision as "voluntary."

3.  The applicant provides a letter from Colonel J___; a letter from his wife; memoranda from two chaplains; a letter from Dr. F___, Ph.D.; a 
DA Form 3822-R (Report of Mental Status Evaluation); a DD Form 689 (Individual Sick Slip); medication printouts; a stress management enrollment memorandum; four DA Forms 4187 (Personnel Action); a DA Form 2823 (Sworn Statement); a DD Form 458 (Charge Sheet); a confinement order; and an inmate release order.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the Regular Army on 3 August  2000 and was discharged on 8 September 2000 for failure to meet procurement medical fitness standards.

2.  He enlisted in the U.S. Army Reserve on 27 January 2003 and was awarded the military occupational specialty of light wheeled vehicle mechanic.  He enlisted in the Regular Army on 22 April 2004.  The highest rank/grade he held during his tenure of service was specialist/E-4.

3.  The applicant's records do not show any significant acts of achievement or valor during his military service.

4.  The applicant's records show he deployed to Iraq in support of Operation Iraqi Freedom during the period 26 December 2004 to 16 February 2005.

5.  The evidence shows he departed from Iraq on leave on 17 February 2005.

6.  A memorandum, dated 25 February 2005, signed by a chaplain in the rank of major indicated the applicant's wife was suffering from emotional trauma and the applicant had brought emotional stability to her life.  He indicated frequent and extended separations, which are inevitable in today's military, are not conducive to her treatment, but rather produce relapses in her condition.  He stated that for the applicant to continue in the military could result in her having a total emotional breakdown.  He stated that the applicant's motives were sincere and recommended the applicant be granted a "chapter 5-18 discharge" [taken to mean a discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), other designated physical or mental conditions].

7.  A letter from a licensed psychologist, dated 2 March 2005, addressed to the applicant's wife also supported granting the applicant a discharge for other designated physical or mental conditions to facilitate his caring for his wife who was diagnosed with a significant mental health condition.  He states that in recent months, this condition has contributed to irrational and impulsive thinking, low energy, difficulty concentrating, and low morale.  He states it is his professional opinion that the applicant's wife's mental status was fragile and could worsen to a disabling level, including loss of touch with reality and extreme mood swings.

8.  In a DA Form 2823, dated 12 April 2005, First Sergeant T___ (located in Iraq) stated that on or about 8 February 2005 the applicant came to him to address his concerns about his wife whom he claimed was suffering from mental issues.  He states the applicant divulged to him that his wife was suffering great mental stress and depression as a result of a miscarriage.  He states the applicant went into further detail about his wife's past and discussed the fact that she had suffered severe mental trauma as a result of an incident that occurred when she was younger, at approximately the age of 17.  He states the applicant claimed that his wife had once tried to commit suicide as a result of the incident.  He states that the applicant also claimed his wife was still suffering from this incident and the fact that the miscarriage had happened threw her into another bout of deep depression.  He continues stating that coupled with these things, the applicant told him that his wife had sent him a couple of e-mail messages that claimed she would do whatever it took to get him home and if that meant harming herself, then she would do just that.  Later in the sworn statement he indicates the applicant told him that he believed his wife was using manipulation tactics through her e-mail in order to get him home.  He also states he informed the applicant that if he did not return to Iraq at the end of his leave he would be processed as absent without leave or as a deserter unless an extension was approved by the chain of command in Iraq.  He states the applicant was evaluated by Dr. D___ and was found not to be suffering from a major psychiatric disorder.  Other DA Forms 2823 and DA Forms 4856 (General Counseling Form) also indicate the applicant was informed of his responsibility to return to Iraq at the expiration of his leave.

9.  The evidence indicates that on 4 March 2005 the applicant stated he had mental issues and requested to go to mental health.  It appears he was admitted to the Topeka Department of Veterans Affairs (VA) Hospital later that day and was released from the hospital on 30 March 2005.  The evidence indicates Dr. D___ G___ evaluated him and stated that he was not barred from deployment to Iraq.  The evidence indicates that when he was informed he would go back to Iraq, he requested to go back to mental health.  The command took him back to mental health on 31 March 2005 because he allegedly began to threaten the life of Lieutenant Colonel (LTC) H___ and the chain of command.  He apparently remained under the hospital's care until he was released on 26 April 2005 and charged with missing movement, wrongfully communicating to Sergeant B___ G___ a threat to kill LTC H___, and willfully disobeying a lawful command to redeploy to Iraq.  He was confined in a civilian jail from 26 April 2005 to 20 June 2005 (approximately 55 days).

10.  A DA Form 3822-R, dated 30 March 2005, indicates the applicant was anxious and depressed.  The box was checked to indicate it was the evaluator's opinion that the applicant had the mental capacity to understand and participate in the discharge proceedings.

11.  On 2 May 2005, the applicant voluntarily requested a discharge under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court martial.  He acknowledged that he may request discharge because he was guilty of one or more of the charges or lesser included offenses contained therein which were preferred against him under the Uniform Code of Military Justice (UCMJ) and authorized the imposition of a bad conduct or dishonorable discharge.

12.  The applicant consulted with counsel and was advised of his rights.  He also acknowledged that he was not subjected to coercion with respect to his request for discharge and that he had been advised of the implications that were attached to his request.  He further acknowledged he understood that if his discharge request was approved, he might be discharged under conditions other than honorable and furnished an under other than honorable conditions discharge.  He acknowledged that as a result of the issuance of such a discharge he would be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the VA, and that he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged that he understood he may expect to encounter substantial prejudice in civilian life by reason of an under other than honorable conditions discharge.  He chose not to submit a statement in his own behalf.

13.  The separation authority approved the applicant's request for discharge under the provisions of chapter 10, Army Regulation 635-200.  On 22 June 2005, the applicant was discharged accordingly.  His DD Form 214 shows he completed a total of 11 months and 10 days of active military service with 53 days of lost time under Title 10, U.S. Code, section 972.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides 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.

15.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

16.  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 discharge with characterization of service of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

17.  On 21 September 2007, the Army Discharge Review Board denied the applicant's request to upgrade his under other than honorable conditions discharge to an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered.  However, he was charged with missing movement, wrongfully communicating a threat to kill a commissioned officer, and willfully disobeying a lawful command to redeploy to Iraq.

2.  The applicant was voluntarily discharged under the provisions of chapter 10, Army Regulation 635-200.

3.  Based on the applicant's record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either an honorable or a general discharge.

4.  The applicant's character of service is based on his performance and conduct during the period in which he served.  The statements from a psychologist and two chaplains indicate a significant mitigating event.

5.  While the applicant's wife's mental health was tenuous, the applicant himself stated that her mental health had been tenuous for a long period of time.  When her mental health had worsened due to her miscarriage, the applicant could have requested a compassionate reassignment or a hardship discharge.  There is no evidence that he attempted to take these types of actions to alleviate his problem.

6.  Blatant violations of the UCMJ must be addressed by all commanders.  To do otherwise would destroy good order and discipline within the ranks.

7.  In consideration of the applicant's willful misconduct which was apparently designed to prevent his redeployment to Iraq and his failure to alleviate his problems with his wife by requesting a compassionate reassignment or hardship discharge, there is insufficient basis to justify upgrading his discharge.

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)                                         AR20090016985



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090016985



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1