BOARD DATE:	  9 February 2012

		DOCKET NUMBER:  AR20110016338 


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 to upgrade his under other than honorable conditions discharge to an honorable discharge and restore his rank/grade to specialist four (SPC)/E-4.

2.  The applicant states, in effect:

* the VA recently granted him a 50-percent service-connected disability for depressive disorder which began prior to his absent without leave (AWOL) period
* this Board stated his completion of the primary leadership development course (PLDC) shows his mental state was not so severe that he was unable to perform his active duty assignments, but the Board did not consider he was only able to procure two medical documents
* his mental illness was not properly addressed while he was in the Army
* he requested and was denied mental health and medical outprocessing exams
* he was never afforded the opportunity consult with legal counsel
* the Board's statement that he was offered legal counsel, mental health, and medical examinations is completely false;
*  he believes he was coerced and maybe even forced to accept the chapter 10 discharge and reduction in rank from E-4 to E-1
* his separation process under the provisions of Army Regulation 635-200, chapter 10, was not voluntary, administratively correct, or in compliance with applicable regulations

3.  The applicant provides the following new evidence:

* self-authored statement
* statement of case
* VA Appeal decision, dated 10 May 2011
* VA Form 21-4138 (Statement in Support of Claim), dated 2 August 2011
* VA Administrative Decisions (Appeals), dated 3 May 2011, 20 July 2011, and 6 August 2004

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 ABCMR in Docket Number AR20100029888, on 21 July 2011.  

2.  The applicant provides a statement of his case, that he believes constitutes a new argument and five new documents that he believes constitute new evidence.  The new argument and evidence were not previously considered by the Board; therefore, they warrant consideration.

3.  The applicant's record shows he enlisted in the Regular Army on 5 March 1985 and he held military occupational specialty 16T (Patriot Missile Crewmember).  The highest grade/rank he attained while serving on active duty was SPC/E-4.

4.  A full copy of his medical records is not available for review in this case; however, his records contain a Standard Form 600 (Health Record) which show he was treated at the Community Mental Health Service at William Beaumont Army Medical Center, Fort Bliss, TX, on 16 January 1991 and DA Form 2173 (Statement of Medical Exam and Duty Status) showing he was admitted for depression on 15 April 1991.  The commander signed the DA Form 2173 and stated the applicant was suffering from excessive stress due to personal and professional problems.

5.  On 6 April 1992, he departed his unit in an AWOL status.  He returned to military control on 14 May 1992.

6.  On 28 July 1992, court-martial charges were preferred against him for one specification of being AWOL from 6 April to 14 May 1992.  

7.  On 28 July 1992, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a 

bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

8.  In his request for discharge, the applicant indicated he understood or acknowledged:

* He was making this request of his own free will and he had not been subjected to any coercions whatsoever by any person
* he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a dishonorable discharge
* He acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits
* He acknowledged he understood that he could be ineligible for many or all benefits administered by the VA
* He acknowledged he understood that he could be deprived of his rights and benefits as a veteran under both Federal and State law
* He stated in his request, "Moreover, I hereby state that under no circumstances do I desire further rehabilitation, for I have no desire to perform further military service"

9.  Although the separation authority's approval memorandum is not available for review, his record contains a duly-constituted DD Form 214 which shows he was discharged for the good of the service in lieu of trial by court-martial with a character of service of under other than honorable conditions.  This form also shows he had completed a total of 7 years, 4 months, and 16 days of creditable active service.

10.  His records do not contain any evidence which shows he was diagnosed with a physical or mental medical condition at the time of his separation.

11.  His records do not contain any evidence suggesting he requested and was denied mental health and medical outprocessing exams.

12.  There is no record of the statement, "he was offered but refused legal counsel and mental health and medical examinations" in the previous case.



13.  He provides several new documents from the VA and BVA.  Several of the documents show he has been in the process for applying for a service-connected disability for his depressive disorder.  These documents show the various treatments he has received for this.  In addition the documents show the BVA granted him a 50-percent service-connected disability for his depressive disorder.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who 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 at any time after court-martial charges are preferred.  Commanders will ensure that an individual is not coerced into submitting a request for discharge for the good of the service.  Consulting counsel will advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A discharge under other than honorable conditions is normally directed for an individual who is discharged for the good of the service.  When a Soldier is to be discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted grade per Army Regulation 600-8-19 (Enlisted Promotions and Reductions).

15.  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.

16.  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.  

17.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  


DISCUSSION AND CONCLUSIONS:

1.  The applicant’s record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

2.  With respect to his arguments:

	a.  his argument that his discharge should be upgraded because the VA granted him a 50-percent service-connected disability shows he had depressive disorder which began prior to his being AWOL has been noted.  However, this does not excuse his going AWOL.  He had the ability to distinguish between right and wrong, and knowingly made the decision to go AWOL.

	b.  contrary to his argument that the Board's previous Record of Proceedings stated "he was offered but refused legal counsel and mental health and medical examinations," this statement does not appear in his original case.

	c.  he argues his case was not properly considered because of a lack of comprehensive medical documents, his mental condition was improperly addressed by the Army, and he requested and was denied mental health and medical outprocessing exams.  The applicant's medical records were not available for the board to review and there is no mental health or separation medical examination in the available file.  The ABCMR is not an investigative body, the burden of proof that an injustice occurred lies with the applicant, and he did not provide enough substantial evidence to support his argument.  Therefore, absent such evidence, regularity must be presumed.

	d.  contrary to his argument that his discharge was not voluntary and he was not afforded the opportunity to consult with counsel, the evidence of record show that subsequent to preferring court-martial charges against him, the applicant did in fact consult with counsel and he was advised of his rights.  Only then did he request discharge for the good of the service in lieu of trial by court-martial.  He could have elected trial by a court-martial, but he chose not to.  

	e.  In his request for discharge, the applicant indicated he understood or acknowledged:

* He was making this request of his own free will and he had not been subjected to any coercions whatsoever by any person
* he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a dishonorable discharge
* He acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits
* He acknowledged he understood that he could be ineligible for many or all benefits administered by the VA
* He acknowledged he understood that he could be deprived of his rights and benefits as a veteran under both Federal and State law
* He stated in his request, "Moreover, I hereby state that under no circumstances do I desire further rehabilitation, for I have no desire to perform further military service"

   f.  When a Soldier is to be discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted grade.  This is the case here. 

3.  There is no evidence nor has the applicant provided any to show he was not properly and equitably discharged in accordance with the regulations in effect at the time and that all requirements of law and regulations were not met or that the rights of the applicant were not fully protected throughout the separation process.  Absent such evidence, regularity must be presumed in this case.

4.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general discharge or restoration of his rank to SPC/E-4.

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 AR20100029888, on 21 July 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)                                         AR20110016338



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110016338



7


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1