IN THE CASE OF:	  

		BOARD DATE:	  6 March 2012

		DOCKET NUMBER:  AR20110019191 


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 an upgrade of his discharge to honorable.

2.  The applicant states the incidents that led to his discharge were the result of having post-traumatic stress disorder (PTSD).  He is now being treated, but the condition began to manifest while he was still on active duty.  He would like the discharge upgraded so he can receive Montgomery GI Bill benefits.

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a Department of Veterans Affairs (VA) Rating Decision.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 17 September 2003, completed training, and progressed normally.  He was advanced to private first class/E-3 on 1 October 2004 and to specialist/E-4 on 1 June 2005.  He served in Iraq from 6 January 2005 to 4 February 2006.

2.  The applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice, on 20 April 2005 for abandoning his weapon and losing military property.

3.  Commencing in Fall 2005, he was counseled repeatedly about misconduct of various kinds, but especially for failure to report for assigned duties.

4.  On 29 June 2006, court-martial charges were preferred against the applicant for being absent from his appointed place of duty, using disrespectful language toward and willfully disobeying a sergeant, possessing marijuana, and committing larceny of $1900.00 worth of personal property.

5.  The chain of command recommended referral of the charges to trial by a special court-martial that was empowered to impose a bad conduct discharge.

6.  The applicant consulted with counsel and he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  He indicated he understood the elements of the charges against him and admitted he was guilty of at least one offense or of a lesser-included offense for which a punitive discharge was authorized.  He acknowledged he would receive a discharge under other than honorable conditions.  He also understood he would be deprived of many or all Army benefits and he might be ineligible for veterans' benefits administered by the VA.  He stated he understood he could expect to encounter substantial prejudice in civilian life because of this discharge.

7.  The chain of command endorsed the applicant's request for discharge.  The general court-martial convening authority approved the request and directed his discharge under other than honorable conditions and reduction to the rank and pay grade of private/E-1.

8.  On 14 August 2006 the applicant was discharged accordingly.  His DD Form 214 shows he completed 2 years, 10 months, and 14 days of creditable active duty service.  His awards included the Army Commendation Medal, National Defense Service Medal, Global War on Terrorism Expeditionary Medal, Global War on Terrorism Service Medal, Army Service Ribbon, and Overseas Service Ribbon.

9.  On 21 April 2010, the Army Discharge Review Board (ADRB) considered the applicant's testimony and the evidence of record and concluded that given the length, quality, and circumstance of his service, the characterization of the discharge was too harsh.  Accordingly, by a vote of 3 to 2, the ADRB upgraded his discharge to general under honorable conditions.  The reason for the discharge remained unchanged.

10.  The VA Rating Decision shows the original claim was received in June 2009.  On 28 June 2011, the VA informed the applicant that it was rating him at 
100-percent disabled for PTSD with alcohol and cannabis abuse effective the date of the original receipt.

11.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 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.

	b.  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.

	c.  Paragraph 3-7b provides that 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.

12.  The Table of Maximum Punishments of the Manual for Courts-Martial shows that a punitive discharge is authorized for four of the applicant's six charged offenses.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states the incidents that led to his discharge were the result of having PTSD.  However, there is no available evidence to show that he was not responsible for his actions.

2.  The applicant's request for a discharge under the provisions of chapter 10, even after appropriate and proper consultation with a military lawyer, indicates he wished to avoid the court-martial and punitive discharge he might have received.  Thus, his misconduct and his actions to avoid the consequences became the determining factors in the characterization of his service.

3.  Any mitigation arising from the applicant's service was recognized and applied by the ADRB that upgraded the discharge.  It should be noted that this was not a unanimous decision.

4.  In view of the foregoing, there is no 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 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)                                         AR20110019191



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ABCMR Record of Proceedings (cont)                                         AR20110019191



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