IN THE CASE OF:	  

		BOARD DATE:	    4 January 2011

		DOCKET NUMBER:  AR20100014033 


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 upgrade of his discharge to honorable and a change of the reason for separation to medical.

2.  The applicant states:

* he was very heavily medicated and sick from diabetes
* most of his actions happened when his blood sugar was very high
* proper procedures were not followed such as giving him a breathalyzer test
* he was not asked if he minded being touched
* his psychiatric records show he doesn't like to be touched
* he was held over in Korea longer than he should have been
* his defense counsel did not explain to him that he was admitting to anything-she simply told him to sign some papers
* he has service connected disabilities including a dislocated collar bone and diabetes

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted on 21 January 2004, completed training as a power generator equipment repairer, and was stationed in Korea.  His enlistment documents show he was 22 years old and had no dependents.
2.  He received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on 28 October 2005, for failing to go to his place of duty on four separate dates between 6 June and 17 October 2005.  He had been counseled on each of those occasions. 

3.  On 28 November 2006, charges were preferred for willful disobedience of a commissioned officer, disrespecting and assaulting a sergeant first class, and resisting apprehension, all on 26 August 2006; resisting apprehension on 23 November 2006; using methamphetamines between 7 and 21 March 2006; assaulting a sergeant and a specialist on 26 August 2006; assaulting a sergeant on 23 November 2006; and being drunk and disorderly on both dates.

4.  The applicant consulted with counsel and voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  He indicated that he understood the elements or the charges against him and admitted that he was guilty of at least one offense for which a punitive discharge was authorized.  He also acknowledged that he would receive an under other than honorable conditions (UOTHC) discharge and that he understood that he would be deprived of many or all Army benefits and that he might be ineligible for veterans benefits administered by the Department of Veterans' Affairs (VA).  He stated that he understood that he could expect to encounter substantial prejudice in civilian life because of the discharge.  He indicated that he had received legal advice but that the request had been made voluntarily and that it reflected his own free will.

5.  The applicant also submitted a 5 December 2006 memorandum to the division commander through the chain of command.  He stated, "While I take full responsibility for any wrongdoing on my part, I respectfully request that the command consider all mitigating factors…"  He also related that:

* he had serious health problems, including diabetes that required constant monitoring and at least eight insulin injections per day, was on Prozac for severe depression, had dislocated his collar bone playing unit sports, and had accidentally broken both hands
* he was financially responsible for a six-year old son who lived with his grandparents because his mother was an addict and couldn't care for him
* he had a difficult childhood -- his father died before he was born, his mother was addicted to prescription drugs, he had lived on the streets after she stabbed him with a screwdriver when he was 16 years old
* despite living in various homeless shelters he finished high school
* he joined the Army to give his son more security and stability than he had experienced
6.  The Staff Judge Advocate reviewed the case and recommended that the charges and specifications be referred to a special court-martial empowered to adjudge a bad conduct discharge.  The commander so referred the case.

7.  The chain of command recommended approval of the applicant's request and a UOTHC discharge.

8.  The commanding general approved the applicant's request and directed that a UOTHC discharge be issued.  On 22 December 2006, the applicant was separated with a UOTHC discharge under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.

9.  The applicant's service medical records are not in the available records and he provided none.

10.  On 14 April 2008, the Army Discharge Review Board denied the applicant's request to upgrade his discharge.

11.  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, 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.

12.  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.  A general discharge is a separation from the Army under honorable conditions.  It is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he was very heavily medicated and sick from diabetes, most of his offenses happened when his blood sugar was very high, proper procedures such as giving him a breathalyzer test were not followed, he was not asked if he minded being touched, his psychiatric records show he doesn't like to be touched, he was held over in Korea, his defense counsel did not explain to him that he was admitting fault-she simply told him to sign, he has service connected disabilities including a dislocated collar bone and diabetes.

2.  There are no available medical records.  There is no available evidence of diabetes (or any of the other factors the applicant mentions) being successfully used as a defense for misconduct.  Furthermore, if the applicant thought those factors justified his offenses he should have insisted on standing trial.

3.  His assertion that he didn't understand the significance of the chapter 10 request but only signed it because his lawyer told him to is not credible.  The applicant chose to request an administrative discharge rather than risk trial.

4.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military service.

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)                                         AR20100014033





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100014033



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1