IN THE CASE OF:	  

		BOARD DATE:  24 July 2012

		DOCKET NUMBER:  AR20110021240 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests upgrade of the applicant's under other than honorable conditions discharge. 

2.  Counsel states:  

* the applicant suffered from mental illness at the time of the offenses and, therefore, his actions were not willful misconduct
* there is no indication the applicant intentionally harmed his children
* the applicant's psychiatrist and a clinical social worker at the time confirm his Bipolar Disorder contributed to his inability to properly care for his children
* a sanity board concluded the applicant suffered from a severe mental defect at the time of the offenses but he could participate in his defense if properly medicated
* the applicant was not mentally competent when he agreed to his chapter 
10 discharge
* the overall quality of the applicant's service was honorable
* a discharge upgrade will allow the applicant to receive medical benefits and treatment for his mental health issues


3.  Counsel provides:

* the applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a 4-page statement from the applicant
* a 4-page Medical Evaluation Board (MEB) Narrative Summary, dated 
23 January 2006 
* a memorandum, dated 30 May 2006
* a 5-page biography
* a 2-page memorandum, dated 11 April 2006
* a 4-page letter from clinical social worker, dated 27 June 2006
* a 4-page memorandum, dated 27 June 2006
* a 2-page letter from Grant-Blackford Mental Health, Inc., dated 12 August 2011
* a Pierce College Associate of Arts and Science Diploma, dated 20 August 2002
* a letter of support from a former fellow Soldier, dated 10 October 2011

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 11 July 2000.  He successfully completed advanced individual training and was awarded military occupational specialty (MOS) 88M (Motor Transport Operator).  

2.  On 17 September 2003, he was honorably discharged for the purpose of reenlistment on 18 September 2003.  He reenlisted to be trained in MOS 96U (Unmanned Aerial Vehicle Operator) at Fort Huachuca, AZ.  

3.  A DD Form 458 (Charge Sheet), dated 5 October 2005, shows court-martial charges were preferred against the applicant for:

* unlawfully breaking the right femur of C.B., a child under the age of 16 years
* committing an assault on E.B. by immersing her body in hot water and intentionally inflicting grievous bodily harm upon her causing second degree burns on her legs, feet, buttocks, and thighs
* committing an assault on C.B. with his feet and intentionally inflicting grievous bodily harm upon him causing a broken leg
* committing an assault on C.B. and intentionally inflicting grievous bodily harm upon him causing a broken leg
* committing an assault on E.B. with a lit cigarette and intentionally inflicting grievous bodily harm upon her causing second degree burns on her back

4.  An MEB Narrative Summary, dated 11 December 2005, indicates the applicant was admitted at the William Beaumont Army Medical Center (WBAMC), TX, for suicidal depression.  He was evaluated by a military psychiatrist who diagnosed the applicant with Bipolar I Disorder, depression and Post-Traumatic Stress Disorder (PTSD), which existed prior to service.  The report further shows that the applicant was in stable condition and was on a regimen of prescribed medicines to stabilize his mental health issues. The military psychiatrist indicated the applicant did not meet military retention standards, was competent for participation in the MEB processing, and recommended referral to the Physical Evaluation Board (PEB).  

5.  On 11 April 2006, after consulting with counsel, the applicant voluntarily submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), chapter 10.  The applicant indicated in his request that he understood he could be discharged under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life.  The applicant did not make an election whether he wanted to submit a statement in his own behalf. 

6.  The applicant's counsel submitted a memorandum, dated 27 June 2006, to the Commander, U.S. Army Intelligence Center and Fort Huachuca, AZ,  indicating the applicant requested he receive a general under honorable conditions discharge rather than the standard under other than honorable conditions discharge.  Counsel further stated the applicant needed continued mental health care.  This memorandum included the submission of support memoranda from the Chief of Inpatient Psychiatry at WBAMC and from the Fort Huachuca Family Advocacy Department."

7.  The Chief of Inpatient Psychiatry indicated during the time the applicant was the sole caretaker for his four children while his wife was deployed to Iraq, he allegedly abused two of his children.  After charges were preferred against the applicant he was placed in the psychiatric ward at WBAMC.  During his hospitalization, the applicant was diagnosed with a severe mental defect.  The Chief of Inpatient Psychiatry diagnosed the applicant's condition as "Bipolar I Disorder, Most Recent Episode Depressed, With Psychotic Features; Posttraumatic Stress Disorder, Chronic" and recommended the applicant undergo a PEB and be separated from the service.  

8.  Counsel also indicated that it was the Chief of Inpatient Psychiatry's opinion the applicant's mental problems played a factor in his alleged misconduct and should be considered as justification for an alternate disposition to the case.  

9.  Counsel requested the applicant undergo a sanity board.  The results of the sanity board concluded that the applicant suffered from a severe mental defect at the time of the offenses and that it was impossible to know "if the accused could appreciate the wrongfulness of his conduct."  The board further determined the applicant could participate in his defense if properly medicated.  Counsel stated the sanity board report, as well as the MEB report, clearly raises the issue of the applicant's mental responsibility at the time of the offenses.  

10.  In addition to the psychiatric treatment, the applicant received assistance from the Fort Huachuca Family Advocacy program.  Based on the opinion of a Clinical Social Worker, the applicant had no "template" for parenting skills.  The Clinical Social Worker indicated the applicant's problems likely stem from a both physically and emotionally abusive mother and father.  The  Clinical Social Worker provided a detailed description of her assessment of the applicant in which she describes several of the alleged incidents of child abuse, and how the 
applicant's behavior did not fit the typical profile of a child abuser.  The Clinical Social Worker further stated that an employee of the Child Protective Services did not observe any inappropriate behavior between the applicant and his children.

11.  Counsel concluded by requesting the applicant be discharged with a general under honorable conditions discharge so he could receive medical benefits to treat his mental health issues.

12.  On 28 June 2006, the separation authority approved the applicant's request for discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200,and he directed that the applicant be reduced to the lowest grade and issued an Under Other Than Honorable Conditions Discharge Certificate.  

13.  On 12 July 2006, the applicant was discharged with a characterization of service of under other than honorable conditions.  He completed a total of 6 years and 2 days of creditable active service.  

14.  The applicant applied to the Army Discharge Review Board (ADRB) for upgrade of  his discharge.  On 8 April 2011, the ADRB determined the applicant's discharge was proper and equitable and the reason for discharge and characterization of his discharge was proper.

15.  The applicant provided a letter, dated 12 August 2011, from a Staff Psychiatrist, Grant Blackford Mental Health Inc.  The psychiatrist indicated that after reviewing the applicant's records, he determined the applicant has a long standing psychotic disorder that began in 2004 and was probably triggered by his wife's deployment to Iraq leaving him with four children.  He concluded the applicant will likely require medication and treatment for the rest of his life.

16.  The applicant provided a letter of support from a Soldier who served with him during his military service which indicated the applicant was bright, dependable, and a good family man. 

17.  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.  Army Regulation 635-200, in pertinent part, states commanders will not take action to separate a Soldier for medical condition solely to spare a Soldier who may have committed serious acts of misconduct.

18.  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.  

19.  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.  

20.  Army Regulation 635-40, Physical Evaluation for Retention, Retirement, or Separation, governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  Paragraph 4-3 provides that an enlisted Soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory 


provision which authorizes a characterization of service of under other than honorable conditions.  It further provides, in pertinent part, that the GCMCA may abate the administrative separation if the Soldier’s medical condition is the direct or substantial contributing cause of the conduct that led to the recommendation for administrative separation or if other circumstances of the individual case warrant disability processing instead of further processing for administrative processing.  The GCMCA must sign a copy of the abatement decision and forward it with a copy of the disability case file to the PEB.  The authority cannot be delegated.

DISCUSSION AND CONCLUSIONS:

1.  The contention of the applicant and his counsel that the applicant's under other than honorable conditions discharge should be upgraded was carefully considered and it was determined there is insufficient evidence to support his request.

2.  Counsel contends that at the time of the offenses mental issues impaired the applicant's judgment and ability to care for his children.  Although the applicant was diagnosed with Bipolar I Disorder, depression, and PTSD, there is no evidence that shows these conditions were the direct cause of his misconduct which led to his separation.

3.  The applicant's counsel argues he was not mentally competent at the time of his request for discharge.  Military medical records clearly indicate he was competent to participate in his separation proceedings.  Absent evidence to the contrary there is no basis for this argument.

4.  The mere existence of a disorder did not preclude the applicant from making a knowing and conscious decision to request discharge.  Counsel has provided insufficient evidences to show the applicant was unable to understand the meaning and effect of his decision to request discharge in lieu of court-martial.

5.  It is noted that the applicant provided a letter of support from a Psychiatrist and a fellow Soldier, however, these letters which were prepared several years after the applicant's discharge do not overcome the burden of proof that his mental status was the direct cause of his acts of indiscipline.

6.  After reviewing the applicant's requests for discharge and the charges preferred against him, the separation authority approved his voluntary request for 


discharge in lieu of court-martial and directed that he be issued a under other than honorable conditions discharge.  Accordingly, the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial.  

7.  Records clearly show the applicant voluntarily 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.

8.  Based on his record of indiscipline, which includes charges preferred for numerous counts of child abuse, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general or honorable discharge.

9.  The ABCMR does not grant requests for upgrade of discharge solely for the purpose of making the applicant eligible for veteran’s benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, granting of veteran's benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for benefits should be addressed to the VA.

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)                                         AR20110021240



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ABCMR Record of Proceedings (cont)                                         AR20110021240



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