BOARD DATE:	  28 June 2011

		DOCKET NUMBER:  AR20110000223 


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 under other than honorable conditions discharge to a general discharge.

2.  The applicant states he served more than 13 years with tours in Iraq in 2003 and 2005.  He states that upon his return from Iraq he developed a prescription drug addiction and suicidal actions, along with a drinking problem.  He states he used narcotics to take away the pain of what he saw and did while deployed and did things not characteristic of him.  He states he was reduced in rank and discharged for a crime.  He adds that he suffers from Post-Traumatic Stress Disorder (PTSD) which was diagnosed since he was in prison.  He also states he needs Department of Veterans Affairs (VA) assistance to continue his PTSD care.

3.  The applicant provides an extract of his discharge packet including his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a letter of support from his parent(s).

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve (USAR) on 1 February 1995.  He completed training and was awarded military occupational specialty 68W (health care specialist).  He was discharged from the USAR on 24 November 1996 preceding his enlistment in the Regular Army on 25 November 1996.  He reenlisted in the Regular Army on 25 July 2002 and on 5 August 2004.  The highest rank/grade he held was sergeant (SGT)/E-5.
2.  On 12 December 2006, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for stealing approximately 40 Percocet prescription medication tablets, the property of the U.S. Government.

3.  The applicant's commander notified him that she was initiating action to separate him for commission of a serious offense.  The reason for her proposed action was that on 19 January 2007, the applicant was charged by the Prosecuting Attorney in and for Thurston County, Washington for attempted robbery in the first degree, while armed with a deadly weapon-firearm, and for assault in the second degree.

4.  A Felony Judgment and Sentence document shows he was convicted in the Superior Court of the State of Washington for the crimes of robbery in the first degree, while armed with a deadly weapon; and for assault in the second degree, while armed with a deadly weapon.  He was sentenced to 84 months confinement in Stafford Creek Correction Facility, Aberdeen, WA.

5.  On 21 March 2008, he was advised by consulting counsel of the basis for the contemplated action to separate him for conviction by a civil court under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), chapter 14, and its effects, the rights available to him, and the effect of a waiver of his rights.  He waived his rights in conjunction with this consultation.

6.  On 24 March 2008, his defense counsel provided a letter indicating the applicant was a wounded warrior and he had been diagnosed with PTSD attributable to his military service.  He further stated in the letter that the applicant worked in a trauma unit while in Iraq and he saw horrific things, such as a 2-year old child who suffered 3d degree burns over 90 percent of his body who died on his table; and other Soldiers with their faces blown off or other body parts missing.  He stated that the best way to help the applicant would be to discharge him with a characterization of service of general under honorable conditions to allow him access to the health care he needs to heal.

7.  On 24 June 2008, an administrative separation board considering the administrative separation of the applicant found that he committed a serious offense within the meaning of Army Regulation 635-200 and that he should not be retained in the military service.  The separation board recommended the applicant be given an under other than honorable conditions discharge.


8.  As a result, the separation authority (a lieutenant general) directed the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct - commission of a serious offense with an under other than honorable conditions characterization of service.

9.  On 16 July 2008, he was discharged accordingly.  The DD Form 214 he was issued shows he completed 12 years and 9 of creditable active service.

10.  On 6 February 2009, the Army Discharge Review Board denied the applicant's request for an upgrade of his under other than honorable conditions discharge.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

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.

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


DISCUSSION AND CONCLUSIONS:

1.  His record shows he accepted NJP under Article 15, UCMJ, for stealing approximately 40 Percocet prescription medication tablets, the property of the U.S. Government.  He was also convicted of robbery in the first degree, while armed with a deadly weapon and for assault in the second degree, while armed with a deadly weapon.  He was sentenced to civilian confinement for a period of 84 months.

2.  Based on his commission of a serious offense, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable or a general discharge.

3.  The available evidence confirms his rights were protected throughout the discharge process.

4.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

5.  In view of the foregoing, there is an insufficient basis for granting the applicant's requested relief.

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)                                         AR20110000223



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ABCMR Record of Proceedings (cont)                                         AR20110000223



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