IN THE CASE OF:	  

		BOARD DATE:	    21 February 2012

		DOCKET NUMBER:  AR20110013903 


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 reconsideration of his previous request for upgrade of his under other than honorable conditions discharge to a general discharge (GD).

2.  He states, in effect, that at the time he requested discharge in lieu of trial by court-martial he was suffering from a severe head injury resulting from another service member's misconduct that significantly impacted his ability to use sound judgment.  He states he is not able to secure legal records related to the incident, and requests that the Board obtain U.S. Army Criminal Investigation Command (CID) records to use as new evidence to support his request for reconsideration.  He states problems with judgment are well-documented in the scientific literature on traumatic brain injury (TBI).  His service prior to an assault on him was exemplary and most accurately reflects the nature of his service.  

3.  He provides a list of consequences of TBI published by the Brain Injury Association and an article on acquired brain injury published in the Journal of Neuroscience Nursing.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100030464, on 26 May 2011.

2.  The applicant has submitted a new argument, and he provides evidence which was not previously considered by the Board.  The new argument and evidence warrant consideration at this time.

3.  He has asked the Board to obtain CID records to use as new evidence to support his request for reconsideration.  The Board is not an investigative body.  The burden of proof rests with the applicant.  If he desires to review CID records pertaining to him, he may request them under the provisions of the Freedom of Information Act.  Notwithstanding the absence of CID records, the available records are sufficient for full and fair consideration of his case.  

4.  The applicant enlisted in the Regular Army on 19 April 1979.  

5.  On 21 August 1979, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for failing to go at the time prescribed to his appointed place of duty.  

6.  On 1 May 1981, he received NJP under the provisions of Article 15, UCMJ, for the following misconduct on 28 March 1981:

* causing a breach of the peace by wrongfully engaging in a fight with another Soldier 
* willfully disobeying a lawful order from a superior noncommissioned officer (NCO)
* assaulting another Soldier by striking him with his fist

His punishment was reduction to private first class/E-3, forfeiture of $148, 14 days of extra duty, and 14 days of restriction with 7 days suspended.

7.  His record includes a DA Form 3975, dated 26 May 1981, showing he was the subject of an investigation by military police for aggravated assault and assault on an NCO in the performance of his duties that occurred on 16 April 1981.  The investigation found the applicant had assaulted another Soldier in a manner likely to cause harm by throwing him through the glass of a phone booth and had assaulted an NCO acting in the performance of his duty by pushing him to the ground and kicking him in the right knee.  

8.  A DD Form 458 (Charge Sheet), dated 19 June 1981, shows he was charged with committing assault on another Soldier and assaulting an NCO on 16 April 1981 and failing to go at the time prescribed to his appointed place of duty on 2 June 1981.

9.  On 19 July 1981, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  Prior to submitting his request, he was advised by counsel of the basis for his contemplated trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge, the maximum possible punishment authorized under the UCMJ, and the possible effects of an under other than honorable conditions discharge.  

10.  In his voluntary request for discharge, he indicated he understood that by submitting the request he was acknowledging he was guilty of the charge against him or a lesser included offense.  He acknowledged if his request were accepted he could receive an under other than honorable conditions discharge.  He further acknowledged he understood if he received an under other than honorable conditions discharge, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could encounter substantial prejudice in civilian life.

11.  His record does not include the results of a psychiatric evaluation completed in conjunction with his request for discharge.

12.  On 20 July 1981, his acting company commander and his battalion commander recommended approval of his request and issuance of an Other than Honorable Discharge Certificate.  

13.  On 14 August 1981, his brigade commander also recommended approval and issuance of an Other than Honorable Discharge Certificate.  In his recommendation, the brigade commander noted that the applicant was charged with two assaults arising from one incident and a failure to repair.  He stated the applicant was apparently intoxicated during the assaults and was provoked by the first victim.  However, he had a history of small fights and an uncontrollable temper and had been a constant disruptive influence to the maintaining of discipline in his unit with his pose as a roughneck. 

14.  On 20 August 1981, the separation authority approved his request for discharge and directed he receive an under other than honorable conditions discharge certificate.

15.  On 1 September 1981, he elected not to undergo a separation medical examination.

16.  On 1 September 1981, he was discharged under other than honorable conditions.  He completed 2 years, 4 months, and 13 days of net active service.
17.  In support of his previous application, the applicant provided service medical records showing he was hospitalized for 2 days for treatment of a concussion and scalp laceration incurred in a fight on 28 March 1981 when he was struck on the head with a baseball bat.

18.  He provides a list of consequences of TBI published by the Brain Injury Association in which he has underlined the following possible cognitive and emotional consequences:

* short-term memory loss
* long-term memory loss
* trouble concentrating or paying attention
* difficulty keeping up with a conversation
* impaired judgment
* lack of initiative
* increased anxiety
* depression
* mood swings
* impulsive behavior
* agitation

19.  He provides an article on acquired brain injury published in the June 2011 issue of the Journal of Neuroscience Nursing, in which he marked the following sentences from the "Discussion" section:

"A feature that transgressed all carers was memory loss, a commonly cited cognitive sequelae of features of TBI…creating frustration and irritation.  For two carers, the feeling of lowness in mood was apparent."

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

	a.  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.  

	b.  The version of the regulation in effect at the time stated, in part, that the request for discharge for the good of the service in lieu of trial by court-martial would be accompanied by a report of the member's mental status evaluation and a statement of any reasonable ground for belief that the member is, or was at the time of misconduct, mentally defective, deranged, or abnormal.  When appropriate, evaluation by a psychiatrist was to be included.

	c.  Paragraph 3-7b provides that a GD 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.  The evidence of record does not support the applicant's request for upgrade of his under other than honorable conditions discharge to a GD.  

2.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The available evidence shows the applicant was charged with assault, an offense for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  

3.  As a result of his request for discharge in lieu of trial by court-martial, he would have been required to undergo a mental status evaluation.  Further, the recommendation accompanying his request would have included a statement of any reasonable ground for belief that he was mentally defective, deranged, or abnormal.  These documents are not included in the available records.  However, in the absence of evidence showing otherwise, it must be presumed he was found competent to participate in the proceedings against him and that, throughout the separation process, all requirements of law and regulation were met and his rights were fully protected.

4.  His record shows he received NJP on two occasions and admitted guilt to the serious offense of assault.  Based on this record of indiscipline his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a GD.







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 to amend the decision of the ABCMR set forth in Docket Number AR20100030464, dated 26 May 2011.



      ___________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)                                         AR20110013903





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ABCMR Record of Proceedings (cont)                                         AR20110013903



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