IN THE CASE OF:	  

		BOARD DATE:	6 July 2010  

		DOCKET NUMBER:  AR20090021127 


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 an upgrade of his under honorable conditions discharge to an honorable discharge.

2.  The applicant states he was a great Soldier until he sustained combat-related injuries.  He states:

   a.  He has had several severe problems since he returned home from Iraq, including post-traumatic stress disorder (PTSD).  He adds he recently passed a drug test, which proves that he is trying to straighten out his life.

   b.  Both the Army Discharge Review Board (ADRB) and his wife believe his discharge was inequitable and should be upgraded to fully honorable.

3.  The applicant provides, in support of his request, a 4-page statement from his wife, Amanda J. G------, dated 15 June 2008.  She states:

   a.  The applicant was a very different person when he returned from Iraq.  He found it very difficult to cope with society.

   b.  Upon his return from Iraq he was assigned to Fort Carson, Colorado.  They moved to Colorado and she became pregnant with their baby.  However, the applicant began to change and his argumentative behavior caused her to leave him.  After their child was born, she returned to live with the applicant.

   c.  The things that the applicant experienced in combat and the injury he sustained in Iraq has made it very hard for him in his everyday life.  She provided the care he required; however, this contributed to his frustration and their home became a hostile environment.  

   d.  She left the applicant again and her husband became more depressed.  He then visited her in Florida, missed his return flight to Colorado, and was in an absent without leave (AWOL) status.  She adds the applicant began drinking and was arrested when he attempted to leave a bar without paying his bill.

   e.  The applicant recognizes the mistakes he made while in the U.S. Army.  She adds he deserves more from the military for his faithful service and asks for assistance with the problems that resulted from his service in Iraq.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army for a period of 3 years on 8 April 2002.  Upon completion of training, he was awarded military occupational specialty 14R (Bradley Linebacker Crewmember).  

2.  The applicant served in Kuwait and Iraq from 7 April 2003 through 27 March 2004.  He was extended in the military 329 days for the convenience of the government.

3.  On 10 January 2006, charges were preferred against the applicant for being AWOL from 15 November to 7 December 2005, three specifications of wrongful use of cocaine, and one specification of wrongful use of methamphetamine.

4.  On 21 February 2006, the applicant consulted with counsel and voluntarily requested a discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 (Discharge for the Good of the Service):

   a.  The applicant's request for discharge states he had not been subjected to coercion with respect to his request for discharge.  It states he was afforded the opportunity to consult with counsel, that he was advised he may be discharged under other than honorable conditions, and that he may be deprived of many or all Army benefits.  It also states that he may be ineligible for many or all benefits administered by the Department of Veterans Affairs, that he may be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  It further states he was advised that he may submit any statements he desired in his own behalf which would accompany his request for discharge.

   b.  The applicant's defense counsel submitted a 4-page statement with
21 enclosures on behalf of his client.  He provided a timeline beginning
1 November 2003 when the Bradley Fighting Vehicle the applicant was in hit an anti-tank mine, along with medical documents for the applicant's subsequent treatment for pain management through 30 October 2005.

   c.  The immediate and intermediate commanders recommended approval of the applicant's request for discharge and an under other than honorable conditions discharge.

5.  On 27 February 2006, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  The commander also directed that the applicant be reduced to the lowest enlisted grade and discharged with a characterization of service of under other than honorable conditions.  Accordingly, the applicant was discharged on 2 March 2006 and issued a DD Form 214 (Certificate of Release or Discharge from Active Duty).

6.  The applicant submitted a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) requesting an upgrade of his under other than honorable conditions discharge:

   a.  After consideration of the applicant's record of service during the period of enlistment under review the ADRB determined that the reason for the applicant's discharge was proper and equitable and unanimously voted not to change it.  However, the Board voted to grant relief in the form of an upgrade of the characterization of service to general under honorable conditions and restoration of the applicant's rank.

   b.  Accordingly, the applicant's original DD Form 214 was voided and a new DD Form 214 was issued reflecting the ADRB's decision.

7.  The applicant's reissued DD Form 214 shows he was discharged on 2 March 2006 in accordance with the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court-martial and his service is characterized as under honorable conditions.  At the time he had completed 3 years, 10 months, and 3 days of net active service:

   a.  Item 18 (Remarks) shows he had continuous honorable active service from 8 April 2002 through 7 April 2005.
   b.  Item 29 (Dates of Time Lost During This Period) shows he had time lost from 15 November through 6 December 2005.

8.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the Uniform Code of Military Justice.  A punitive discharge is authorized for offenses under Article 112a for wrongful use of a controlled substance.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel:

   a.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

   b.  This regulation 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his general discharge should be upgraded to honorable because he was a great Soldier until he sustained combat-related injuries.  The ADRB recommended that his discharge be upgraded to fully honorable and he is trying to straighten out his life, but needs help.

2.  The applicant's contentions were carefully considered:

   a.  The applicant's continuous honorable active service from 8 April 2002 through 7 April 2005 is acknowledged and it is recorded on the applicant's
DD Form 214.

   b.  ADRB members unanimously voted to grant relief in the form of an upgrade of the characterization of the applicant's service to general under honorable conditions.  Accordingly, the applicant's original DD Form 214 was voided and he was issued a new DD Form 214 to reflect the ADRB's decision.
3.  The applicant's request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by
court-martial was voluntary and administratively correct.  All requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.  The offense that led to the discharge outweighs his overall record.  Therefore, considering all the facts of the case, the characterization of service directed, as corrected by the ADRB, was appropriate.  However, the quality of his service does not warrant a further upgrade to fully honorable.

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)                                         AR20090021127



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ABCMR Record of Proceedings (cont)                                         AR20090021127



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