IN THE CASE OF:	  

		BOARD DATE:	    31 October 2013

		DOCKET NUMBER:  AR20130003730 


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 under other than honorable conditions.

2.  The applicant states his discharge was unfair.  He was severely injured during an airborne operation at Fort Bragg, NC.  He contends that the Army has the Emergency Room X-rays and all of the paperwork from Womack Army Hospital, Fort Bragg, NC.  Due to this injury, he was prescribed narcotics which counteracted with his Post-Traumatic Stress Disorder (PTSD) medication.  As a result, he was separated due to bias and unfair justification.

3.  Although the applicant indicates he provides a DD Form 214 (Certificate of Release or Discharge from Active Duty) and other supporting records, he did not submit any additional evidence with his application.

CONSIDERATION OF EVIDENCE:

1.  On 2 July 2008, the applicant enlisted in the Regular Army, he was awarded military occupational specialty 11B (Infantryman) upon completion of the required training, and he was assigned to the 82nd Airborne Division, Fort Bragg, NC.  The highest rank/grade he attained while serving on active duty was specialist/
E-4.  However, at the time of discharge he held the rank/grade of private/E-1.




2.  The applicant's record contains:

	a.  DA Forms 4856 (Developmental Counseling Form) which show he was counseled for showing disrespect toward a noncommissioned officer (NCO), poor performance, and being late for formations.

	b.  A Military Police Report (MPR) which shows he was charged with violating two counts of Article 92 of the Uniform Code for Military Justice (UCMJ) by failing to obey general orders pertaining to the possession of contraband and synthetic urine.  On 31 January 2011, while checking on the applicant's well-being, an NCO discovered the following items in his room:  one white box containing two bottles of synthetic urine; two plastic syringes labeled "Dr. Shots"; and one wooden, brown in color, storage container referred to as a "one hitter."  The applicant was transported to the Provost Marshal’s Office, advised of his legal rights which he invoked by failing to render a sworn statement, and subsequently released to his unit.  This MPR is accompanied by three DA Forms 2823 (Sworn Statement) rendered by witnesses on 31 January 2011.  Each witness recounted the applicant's bizarre behavior which had prompted the health and welfare visit to his room by the aforementioned NCO who discovered the drug paraphernalia.

	c.  A Medical Command (MEDCOM) Form 4038 (Report of Behavioral Health Evaluation) which shows he underwent a behavioral health evaluation by a staff psychologist on 31 January 2011.  The examining psychologist noted:

* his behavior was normal
* he was fully alert
* he was fully oriented
* his mood and affect were depressed
* his thinking process was clear
* his thought content was normal
* his memory was good

	d.  The psychologist opined the applicant had the mental capacity to understand and participate in the proceedings, he was mentally responsible, and met the retention requirements of chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  She diagnosed the applicant with polysubstance abuse and an adjustment disorder.  She determined the applicant had the potential for self harm, harm to others, and a moderate risk for departing his unit in an absent without leave (AWOL) status.  The applicant was considered potentially dangerous so as precautions it was recommended that he:

* be ordered to move into the barracks
* receive increased supervision under the Command Interest Program
* not be allowed to use military or personal weapons or ammunition
* be ordered not to consume alcohol

	e.  The examining psychologist determined the applicant should be returned to duty with no change in duty status.  She opined the applicant was psychiatrically cleared for any administrative action deemed appropriate by the command.  She noted the applicant had been screened for PTSD and Traumatic Brain Injury (TBI) and it was determined these conditions were either not present or, if present, did not meet Army Regulation 40-501 criteria for a medical evaluation board (MEB).  Due to the applicant's frequent substance use and behavior problems, he was to remain on 24 hour unit watch until he was separated from the Army.  He represented a command liability and impaired the overall unit readiness and functioning; therefore, his separation should be processed expeditiously.  He should not have access to weapons or airborne operations.  There was no evidence of an emotional or mental disorder of psychiatric significance at the time to warrant disposition through medical channels; therefore, he was psychiatrically cleared for any administrative action deemed appropriate by the command, including administrative discharge.

3.  A DD Form 458 (Charge Sheet) shows court-martial charges were preferred against him for violating the following Articles of the UCMJ by committing the specifications shown:

	a.  Two specifications of violating Article 90 by offering violence toward a commissioned officer by striking him, biting him on the hand, and throwing him backwards onto the ground.

	b.  Two specifications of violating Article 91 by being disrespectful in language toward an NCO and striking and poking him in the eye with his finger.

	c.  One specification of violating Article 92 by violating a lawful general regulation by wrongfully possessing drug paraphernalia, to wit: a hypodermic syringe intended to be used to inject a controlled substance.

	d.  One specification of violating Article 108 by willfully damaging a wall by striking it with his fist.

	e.  Two specifications of violating Article 134 by being disorderly in a public place while in uniform and demonstrating conduct which was of a nature to bring discredit upon the armed forces on two separate occasions.


4.  On 7 February 2011, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Following counseling, the applicant submitted a voluntary written request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  In his request for discharge, he indicated he understood that by requesting discharge, he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a discharge under other than honorable conditions.  He acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  The applicant acknowledged his right to submit statements in his own behalf, but none were included with his request.

5.  The applicant's chain of command recommended approval of his request with an under other than honorable conditions discharge.  On 10 February 2011, the separation authority approved the applicant's discharge request and directed that he be reduced to the lowest enlisted grade and discharged under the provisions of Army Regulation 635-200, chapter 10 with an under other than honorable conditions discharge. 

6.  His DD Form 214 shows that on 17 February 2011 he was discharged accordingly.  He completed 2 years, 7 months, and 8 days of creditable active service with time lost from 9 to 16 February 2011 due to being in military confinement.

7.  The applicant's record is void of any evidence and he has failed to provide any evidence that shows he sustained an injury during an airborne operation or that he was diagnosed with PTSD.

8.  On 3 February 2012, the applicant was informed the Army Discharge Review Board, after careful consideration of his military records and all other available evidence, had determined he was properly and equitably discharged and advised him that his request for a change in the character and/or reason of his discharge had been denied.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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, an Under Other than Honorable Conditions Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service at the time.

10.  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.

11.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his record should be corrected by upgrading his under other than honorable conditions discharge was carefully considered and determined to lack merit.

2.  The applicant's record is void of any evidence and he has failed to provide any evidence that shows he sustained an injury during an airborne operation or that that he was diagnosed with PTSD.  Therefore, his contention that he was prescribed conflicting medications for the treatment of these conditions is unfounded.

3.  His record shows he was charged with the commission of numerous offenses punishable under the UCMJ with a punitive discharge and he voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10 to avoid a trial by court-martial which may have resulted in a felony conviction.

4.  The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  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.

5.  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 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)                                         AR20130003730



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ABCMR Record of Proceedings (cont)                                         AR20130003730



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