IN THE CASE OF:	  

		BOARD DATE:	  13 June 2013

		DOCKET NUMBER:  AR20120018599 


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, in effect, that he be evaluated under the Physical Disability Evaluation System (PDES) and that he be medically discharged or retired by reason of physical disability. 

2.  The applicant states, in effect, that he was suffering from a bi-polar disorder at the time he committed his offense and was not medically sound when he submitted his request for discharge in lieu of trial by court-martial and should have been referred for evaluation by the PDES. 

3.  The applicant provides a 13-page brief explaining his application and a list of supporting documents on his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 29 December 2005 for a period of 4 years, training as a health care specialist and a $20,000 enlistment bonus.  He completed his training and was assigned to Fort Hood, Texas.   

2.  On 27 November 2006, while at home during the Thanksgiving Holiday, the applicant found his brother-in-law hanging in the garage after committing suicide.  The applicant was subsequently admitted to a hospital in New York and diagnosed with Post-Traumatic Stress Disorder (PTSD) and a personality disorder not otherwise specified (NOS).

3.  On 23 January 2007, he went absent without leave (AWOL) and remained absent in desertion until he surrendered to his unit on 17 March 2008 (14 months).

4.  He deployed to Iraq with his unit on 8 May 2008 and a Chronological Record of Medical Care, dated 23 July 2008, shows he was seen by a psychiatrist for bipolar II disorder.  The document indicates the injury and illness were not work or battle related, his mental disorder was a non-battle illness, and he was not taking medication.  He indicated that the applicant’s disorder did not eliminate his culpability for his actions prior to deployment or eliminate the appropriateness of disciplinary actions as determined by the chain of command. 

5.  On 23 July 2008, court-martial charges were preferred against him for being AWOL from 23 January 2007 to 17 March 2008 and on two occasions for being disrespectful in language and deportment toward a superior noncommissioned officer.

6.  On 30 July 2008, the Officer in Charge of the Forward Operating Base Marez Combat Stress Control Center concluded that the applicant had a "major mental illness that necessitates evacuation from theater."

7.  On 7 August 2008, his defense counsel requested that the applicant's request be approved in light of all the circumstances discussed in his request for a chapter 10 discharge in lieu of court-martial.  The defense counsel provided the comments listed below:

   a.  The applicant faced charges for a 14-month AWOL and for showing disrespect to a sergeant/E-5.
   
   b.  The applicant's significant mental health issues had affected his ability to make good decisions.  One traumatic experience in particular profoundly affected him: he discovered his brother-in-law’s dead body after a hanging suicide.  After this discovery, the applicant sought mental health treatment.  He was an inpatient at North Shore Long Island Jewish-Zucker Hillside Mental Hospital in New York City.  He was also an inpatient at Darnall Hospital at Fort Hood.  Though he brought his mental health concerns to his former chain of command, he was often not allowed to attend important counseling sessions, and his request for a hardship discharge was not carefully considered.  When his problem grew worse, he went AWOL.  While AWOL, he continued to receive mental health treatment.
   
   c.  After returning to his unit on his own accord, the applicant deployed to Mosul.  Deployment had not improved his mental health.  On 30 July 2008, the Officer in Charge of the Forward Operating Base Marez Combat Stress Control Center concluded that the applicant had a "major mental illness that necessitates evacuation from theater."  
   
   d.  A chapter 10 would punish the applicant, leaving him with the stigma of an other than honorable discharge, and send a message to other Soldiers that there are real consequences for Soldiers who go AWOL.  In addition, a chapter 10 would alleviate the need for a lengthy sanity board process and allow the applicant to return to the United States where he could secure the treatment he needed from his own doctors at no expense to the Army.

8.  On 7 August 2008, the applicant’s counsel submitted a request for a sanity board and directed that the results only be provided to defense counsel.  The record is silent as to the outcome of his request.

9.  On 7 August 2008, after consulting with counsel, he voluntarily requested discharge in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Active Duty Enlisted Administrative Separations).

   a.  He acknowledged he understood that he could request discharge in lieu of trial by court-martial because the following charges, or lesser included violations, preferred against him under the Uniform Code of Military Justice authorized the imposition of a bad conduct or dishonorable discharge:
   
* Charge I, Specification: AWOL
* Charge II, Specification 1: Disrespect
* Charge II, Specification 2: Disrespect

   b.  He acknowledged he was making the request of his own free will and had not been subjected to any coercion whatsoever by any person.  He had been advised of the implications that were attached to his request.  By submitting his request for discharge, he acknowledged that he understood the elements of the offenses charged and that he was guilty of one or more of the charges against him, or of a lesser-included offense therein contained, which also authorized the imposition of a bad conduct or dishonorable discharge.
   
   c.  He acknowledged that he understood if his request for discharge was accepted, he may be discharged under other than honorable conditions.  Knowing this, and without placing any condition on this chapter 10 request, he respectfully requested the convening authority take his service record into consideration to approve a general under honorable conditions discharge.
   
   d.  He acknowledged he had been advised and understood the possible effect of a discharge under other than honorable conditions as well as a general discharge, under honorable conditions and that, as a result of the issuance of either discharge, he would 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 my rights and benefits as a veteran under both Federal and State Law.  He also understood that he may expect to encounter substantial prejudice in civilian life because of being given an under other than honorable conditions discharge or general discharge.
   
   e.  He did not choose to submit a statement on his own behalf to accompany the request.  He acknowledged receipt of a copy of his request for discharge.
   
10.  On 22 August 2008, his request for discharge in lieu of trial by court-martial was approved by the appropriate authority.

11.  On 3 October 2008, he was given an under other than honorable conditions discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial after completing 1 year, 7 months, and 11 days of active service.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows time lost under Title 10, U.S. Code, section 972, during the period 23 January 2007 through 16 March 2008 (422 days).  His DD Form 214 shows the entry "KFS" in item 26 (Separation Code) and the entry "4" in item 27 (Reentry Code).

12.  On 8 June 2009, the Army Discharge Review Board upgraded his under other than honorable conditions discharge to a general discharge and restored his rank/grade to specialist/E-4.  However, the ADRB determined that the reason for discharge, to include the RE code was both proper and equitable.

13.  The applicant provides a VA Rating Decision, dated 11 May 2010, indicating he was granted service connection for bipolar disorder with an evaluation of 50 percent, effective 4 October 2008.

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

	a.  Chapter 10, in effect at the time, stated a Soldier who had committed an offense or offenses, the punishment for which under the Uniform Code of Military Justice and the Manual for Courts-Martial included a bad conduct or dishonorable discharge, could submit a request for discharge in lieu of trial by court-martial.  Commanders would ensure that a Soldier was not coerced into submitting a request for discharge in lieu of trial by court-martial.  Consulting counsel would advise the member concerning the elements of the offense(s) charged, possible punishments, 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.  An under other than honorable conditions discharge was normally appropriate for a Soldier who was discharged in lieu of trial by court-martial.

	b.  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 meets the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization is clearly inappropriate. 

15.  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.  It establishes the Army PDES according to the provisions of Title 10, U.S. Code, chapter 61, and Department of Defense Directive 1332.18.  It sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.  The mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.

16.  Army Regulation 635-200, Section VI (Medical Processing), paragraph 1-33 (Disposition through medical channels) states in paragraph 1-33a that except for separation under chapter 10 and as provided in paragraph 1-33b, disposition through medical channels takes precedence over administrative separation processing.  

17.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  The ABCMR considers individual applications that are properly brought before it.  The ABCMR will decide cases on the evidence of record; it is not an investigative body.
 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he was improperly discharged and that he should have been processed for separation through the PDES has been noted and appears to lack merit. 

2.  The evidence of record shows that the applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  

3.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  In doing so he admitted guilt to the charges against him.

4.  Discharge under chapter 10 does not defer to processing through medical channels as do most other administrative discharges.  Accordingly, he was properly discharged.

5.  Additionally, the evidence submitted with his application and the evidence of record fails to show that he was unable to distinguish right from wrong and to adhere to the right.

6.  While there appears to be no doubt that he was diagnosed with bi-polar disorder, there simply is insufficient evidence to show that he was not responsible for his acts of misconduct and that his discharge was improper.

7.  Accordingly, there appears to be no basis to grant his request.   

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)                                         AR20120018599





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ABCMR Record of Proceedings (cont)                                         AR20120018599



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