BOARD DATE:	  14 November 2013

		DOCKET NUMBER:  AR20130004981 


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 under other than honorable condition discharge to a general discharge. 

2.  The applicant states he now has epilepsy/seizures which he believes came from his time in Iraq, Ramadi to be precise.  He is in need of medical benefits which he can't get from the Department of Veterans Affairs (VA) due to the characterization of his service.  He also believes he was suffering from post-traumatic stress disorder (PTSD) at the time of his incidents which led to the type of discharge he received.  He was recently diagnosed with PTSD but he can't receive the help he needs. 

3.  The applicant provides:

* Disabled American Veterans sheet
* VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative)
* VA Form 21-4138 (Statement in Support of Claim)
* Hospital discharge instructions
* Printout about epilepsy

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army on 19 March 2003 and he held military occupational specialty (MOS) 92F (Petroleum Supply Specialist). 
2.  He served in Kuwait/Iraq from 8 August 2004 to 31 July 2005.  He was awarded or authorized the Army Good Conduct Medal, National Defense Service Medal, Iraq Campaign Medal, Global War on Terrorism Service Medal, Korea Defense Service Medal, and Army Service Ribbon. 

3.  On or about 9 December 2005, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana.  

4.  On 27 January 2006, he departed his unit in an absent without leave (AWOL) status but he returned to military control on 30 January 2006. 

5.  On 8 February 2006, he again departed his unit in an AWOL status but he returned to military control on 21 February 2006.  

6.  On 3 March 2006, he departed his unit in an AWOL status for a third time.  He returned to military control on 29 March 2006. 

7.  On 29 March 2006, he again accepted NJP under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty and for wrongfully using a controlled substance. 

8.  On 11 April 2006, he departed his unit in an AWOL status for a fourth time.  He returned to military control on 5 May 2006. 

9.  On 5 May 2006, his command preferred court-martial charges against him for four specifications of AWOL from 27 to 30 January, 8 to 21 February, 3 to 29 March, and 11 April to 5 May 2006. 

10.  On 17 May 2006, the applicant 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 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 (Enlisted Personnel Separations).

11.  In his request for discharge, the applicant indicated that:

* he understood he was being charged with violating multiple Articles of the UCMJ and he fully understood the elements of the offenses
* he was making this request of his own free will and had not been coerced by any person whatsoever
* 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 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, that he could be ineligible for many or all benefits administered by the VA
* he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State law
* he elected to submit a statement on his own behalf

12.  In his personal statement, he stated:

* if it wasn't for his repeated misconduct, he would have left the Army a few months back
* his wife had been diagnosed with cancer and she has had a miscarriage and the cancer may be spreading
* he tried to focus on the Army and his career but he has been going through a lot
* instead of relying on his chain of command's assistance and support, he ignored their efforts and went out on his own
* he was mistaken not to utilize the chain of command and he is sorry for his actions
* he believes he deserves an under other than honorable conditions discharge

13.  His immediate, intermediate, and senior commanders recommended approval of his discharge action with the issuance of an under other than honorable conditions characterization of service. 

14.  On 17 May 2006, consistent with the chain of command recommendations, the separation authority approved the applicant’s request for voluntary discharge and directed that he be given an under other than honorable conditions discharge and be reduced to the lowest enlisted grade.  On 1 June 2006, the applicant was discharged accordingly.  

15.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of court-martial with an under other than honorable conditions characterization of service.  He completed 3 years and 3 days of creditable active duty service and he had lost time from 27 to 30 January, 8 to 21 February, 3 to 29 March, and 11 April to 5 May 2006. 
16.  On 4 April 2012, the Army Discharge Review Board (ADRB) reviewed his discharge and determined it was both proper and equitable.  The ADRB denied his request for an upgrade. 

17.  His service medical records are not available for review with this case.  Similarly, his separation physical is also not available for review.  Additionally, his service records do not contain:

* A permanent physical profile
* A diagnosis of a disabling condition that rendered him unable to perform the duties required of his MOS or grade
* A mental status evaluation that confirms a diagnosis of PTSD or any other mental health problem
* A medical examination that warranted his entry into the Army Physical Disability Evaluation System (PDES)

18.  He provides two post-service VA forms together with a printout about epilepsy as well as post-service hospital discharge instructions.  It appears according to the Disabled American Veterans that at some point in 2012 the applicant was diagnosed with PTSD, seizure conditions, migraine headaches, lower back problems, and sciatic nerve damage. 

19.  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, a discharge under other than honorable conditions is normally considered appropriate.

	a.  Paragraph 3-7a states 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.

	b.  Paragraph 3-7b states 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 establishes the Army physical disability evaluation system (PDES) and 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 office, grade, rank, or rating.  

	a.  Chapter 3 states disability compensation is not an entitlement acquired by reason of service incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

	b.  Chapter 4 states an enlisted member may not be referred for physical disability processing when action has been started that may result in an administrative separation with a characterization of service of under other than honorable conditions.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s records show he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharge actions processed 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.  The available evidence clearly shows he elected to go AWOL on at least four separate occasions.  Additionally, upon preferring court-martial charges against him, he exercised his right to consult with counsel.  His options were to face the court-martial that could have adjudged a dishonorable or a bad conduct discharge or submit a voluntary request for discharge.  He voluntarily chose the discharge.  Those were choices that he made. 

3.  The applicant was discharged because he chose to go AWOL and when he was returned to military control he chose to be discharged.  His service was not interrupted by a medical condition.  His service was interrupted by his misconduct and choice to request a voluntary discharge.  He could have elected a court-martial if he felt he had a medical condition that caused his misconduct. 

4.  There is no evidence that the applicant was diagnosed with epilepsy, PTSD, or any other medical condition during his active duty service.  Likewise, there is no evidence any of these alleged conditions led him to go AWOL on four separate occasions.  

5.  Based on his extensive history of indiscipline and misconduct, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge to either general or honorable. 

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)                                         AR20130004981



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ABCMR Record of Proceedings (cont)                                         AR20130004981



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