IN THE CASE OF:	  

		BOARD DATE:	  31 May 2011

		DOCKET NUMBER:  AR20100027472 


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

2.  The applicant states he entered the Army when he was 17 years old to serve his country because of 11 September 2001.  He deployed to Kuwait in February 2003.  One month later, we were at war and in March 2003 they entered Iraq.  He still remembers his commander telling them there was chemical and biological capabilities in the scuds.  His gas mask would not seal when the first scud was launched.  He witnessed buildings on fire, oil lines blown up, and cars and trucks blown up with bodies burning inside.

3.  He states after returning from Iraq he was having a hard time transitioning back to normal society so he starting going to counseling at the Fort Polk Medical Center.  His doctor prescribed him different kinds of medication and before long he was addicted to them.  He was becoming a different person after Iraq (he didn't care about anything and he couldn't sleep or eat without thinking about Iraq).  He contends the U.S. Army Criminal Investigation Command (USACIDC, also known as CID) found out about all the medications he was taking because he asked one of his noncommissioned officers for help because he knew something inside wasn't right.  He states CID coerced answers out of him and told him what to say in the sworn statement.  He let the CID officer type the sworn statement and he signed it because he was hungry and tired.  A couple of weeks later he realized what happened when charges were preferred against 


him.  His lawyer suggested he take a chapter 10 because it was the quickest way to get out of the Army and she explained the chapter 10 to him and said after 6 months he could have his discharge upgraded to honorable.  He agreed and was discharged on 7 June 2005.

4.  He further states he was supposed to be discharged under chapter 5-13 due to Post Traumatic Stress Disorder (PTSD) and personality disorders acquired after Iraq.  He was also recommended for a medical discharge because he injured his back in Iraq and could not perform as a Soldier anymore. 

5.  The applicant provides:

* DD Form 214
* Letter, dated 6 February 2008, from his physician
* Letter, dated 26 October 2007, from his grandmother
* Letter, dated 25 October 2007, from his mother
* Sworn statement, dated 17 November 2004
* His wife's sworn statement, dated 17 November 2004
* Memorandum, dated 19 November 2004  

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  He was born on 25 August 1984.  He enlisted in the Regular Army on 7 May 2002 for a period of 3 years.  He completed his training and was awarded military occupational specialty 63B (light wheel vehicle mechanic). 

3.  He served in Iraq from 6 February 2003 through 9 August 2003.



4.  On 24 August 2004, he was diagnosed with bipolar disorder (adolescent onset), attention deficit hyperactivity disorder (childhood onset), and personality disorder.

5.  In October 2004, separation action was initiated against him under the provisions of Army Regulation 635-200, chapter 5, paragraph 5-13, for personality disorder.   

6.  He provided a sworn statement, dated 17 November 2004, wherein he admitted he made a false report to CID so he could get more medication, he was addicted to prescription drugs, he had obtained prescription drugs under false pretenses, he abused illicit drugs while in the Army, he asked his wife to lie for him, and he sold drugs while in the Army.

7.  He provided a memorandum, dated 19 November 2004, which states the recommendation for separation under the provisions of Army Regulation        635-200, chapter 5, paragraph 5-13, for personality disorder was approved.

8.  On 27 April 2005, charges were preferred against him for making a false official statement, impeding an investigation, obtaining under false pretenses prescription pills, distributing ecstasy, using ecstasy, wrongfully possessing Percocet, and using marijuana.

9.  On 13 May 2005, he consulted with counsel and he requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of court-martial.  He indicated that by submitting his request for discharge he acknowledged he was guilty of a charge against him that authorized the imposition of a bad conduct or dishonorable discharge.  He indicated in his request that he understood he might be discharged under conditions other than honorable and furnished an under other than honorable conditions discharge, that he might be ineligible for many or all benefits administered by the Department of Veterans Affairs, that he would be deprived of many or all Army benefits, and that he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He acknowledged that he might expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He elected not to make a statement in his own behalf.

10.  On 25 May 2005, the separation authority approved the applicant's voluntary request for discharge and directed the issuance of an under other than honorable conditions discharge.

11.  He was discharged on 9 June 2005 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  He had served a total of 3 years, 1 month, and 3 days of creditable active service.

12.  There is no evidence which shows he was diagnosed with PTSD.

13.  On 20 September 2006, the Army Discharge Review Board denied his request for a discharge upgrade.

14.  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, 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.

15.  Paragraph 5-13b (Separation because of personality disorder) of Army Regulation 635-200 states commanders will not take action prescribed in this chapter in lieu of disciplinary action solely to spare a Soldier who may have committed serious acts of misconduct for which harsher penalties may be imposed under the Uniform Code of Military Justice (UCMJ).

16.  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.

17.  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.  

DISCUSSION AND CONCLUSIONS:

1.  He contends he was supposed to be discharged for PTSD or a personality disorder.  However, there is no evidence which shows he was diagnosed with PTSD.  It appears he may have been honorably discharged for personality disorder if he had not admitted to charges triable by court-martial.  Paragraph 
5-13b of the governing regulation precludes such action when UCMJ charges are pending.

2.  He contends he was recommended for a medical discharge.  However, no evidence shows he was ever medically unfit to perform his duties.  

3.  His contention that CID coerced answers out of him and told him what to say in his sworn statement relates to evidentiary and legal matters that could have been addressed and conclusively adjudicated in a court-martial/appellate process.  However, he voluntarily requested discharge in lieu of trial by court-martial.  

4.  His record of service included numerous serious offenses for which court-martial charges were preferred against him.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge or a general discharge.

5.  His voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns; however, he elected not to do so.

6.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the 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)                                         AR20100027472





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100027472



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1