IN THE CASE OF:
BOARD DATE: 8 May 2014
DOCKET NUMBER: AR20130014881
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 to general under honorable conditions.
2. The applicant states he sustained a serious head injury after an assault in a military barracks. He was absent without leave (AWOL) while he was still confused. He returned to the base after he regained his senses. He was never allowed to present a case to exonerate himself from criminal charges. He was pressured into signing an agreement to leave the service. He was suffering from a traumatic brain injury (TBI); he had no way to defend himself and had no legal counsel to help him. He was subjected to severe hazing until he signed the papers.
3. The applicant provides:
* service medical records from Tripler Army Medical Center (AMC), HI
* DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 14 February 2000
* letter from Dr. G____, PhD, Clinical Psychologist, Certified Substance Abuse Counselor, Domestic Violence Counselor, Honolulu, HI, dated 25 January 2010
* letter from Dr. B____, MD, Tripler AMC, dated 9 February 2011
* letter from the Department of Veterans Affairs (VA), Honolulu Regional Office, dated 2 May 2013
CONSIDERATION OF EVIDENCE:
1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. On 4 March 1998, he enlisted in the Regular Army.
3. Medical records provided by the applicant revealed the following information.
a. On 17 June 1999, he was treated in the Tripler AMC emergency room after being assaulted with 2-inch by 4-inch boards in the barracks. He had multiple head injuries. He was intoxicated and belligerent. He was admitted and maintained in a cervical-spine collar until he was sober.
b. A Record of Inpatient Treatment, dated 18 June 1999, shows his primary diagnosis as contusion of face, scalp, and neck (except eyes) and his secondary diagnosis as open wound of forehead, uncomplicated.
c. According to a Radiologic Examination Report, dated 18 June 1999, there was no focal mass effect or shift of the midline structures. The density of the brain substance was unremarkable throughout. No evidence of acute trauma or fracture was identified.
d. On 19 June 1999, he was discharged and returned to duty with no activity limitations.
4. On 22 June 1999, he was AWOL.
5. On 31 August 1999, court-martial charges were preferred against the applicant for being AWOL from on or about 22 June 1999 to on or about 23 August 1999.
6. On 2 September 1999, he consulted with counsel who fully advised him of the nature of his rights under the Uniform Code of Military Justice, the elements of the offense with which he was charged, the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty, and the maximum permissible punishment if found guilty.
7. On 2 September 1999, 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 acknowledged he understood the elements of the offense he was being charged with and that he was:
* making the request of his own free will
* guilty of the offense with which he was charged
* advised he could submit any statements he desired in his behalf to accompany his request for discharge
* afforded the opportunity to speak with counsel prior to making this request
* advised he could be issued a discharge under other than honorable conditions
8. He did not desire to submit any statement in his behalf. In addition, he acknowledged he understood he could expect to encounter substantial prejudice in civilian life if a discharge under other than honorable conditions were issued to him. He also acknowledged he understood he:
* would be deprived of many or all Army benefits
* may be ineligible for many or all VA benefits
* may be deprived of his rights and benefits as a veteran under both Federal and State laws
9. On 31 January 2000, the appropriate authority approved the applicant's request for discharge for the good of the service. He directed his reduction to private/E-1 and the issuance of a discharge under other than honorable conditions.
10. On 14 February 2000, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He completed 1 year, 9 months, and 9 days of active service that was characterized as under other than honorable conditions. He had 62 days of lost time.
11. On 14 March 2003, the Army Discharge Review Board (ADRB) reviewed and denied the applicant's request for a discharge upgrade. The ADRB determined his discharge was proper and equitable and the discharge was properly characterized as under other than honorable conditions.
12. The applicant provided a letter from Dr. G____, dated 25 January 2010 (presumed to be 2011), who stated:
a. He had seen the applicant for a total of 10 individual therapy sessions since 9 September 2010.
b. The applicant told Dr. G____ he had been hit in the head with a big wooden plank while he was serving on active duty. The blow to the head left him confused and eventually hospitalized at Tripler AMC. He was very confused even after he was released from the hospital and he never reported back to duty.
He was then discharged as he was considered to have simply been AWOL.
c. The applicant also began to hear voices, hear footsteps following him, and see shadows after the blow to his head. All the symptoms were not present before he was injured and he is now on disability because the auditory and visual hallucinations continue to impair him.
13. The applicant provided a letter, dated 9 February 2011, from Dr. B____, who stated the applicant had been receiving community-based case management services from Helping Hands Hawaii since 20 July 2010. His diagnosis is psychotic disorder secondary to TBI versus depressed-type schizoaffective disorder, with methamphetamine dependence in early full remission and nicotine dependence.
14. Army Regulation 635-200 sets forth the basic authority for the administrative separation of enlisted personnel.
a. Chapter 10 states 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. 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 contends he was suffering from a TBI when he was released from the hospital and he was confused. When he returned to duty he was not allowed to present a case to exonerate himself from criminal charges. He had no legal counsel to help him.
2. The medical records he submitted show he was the victim of an attack in the barracks where he suffered multiple head injuries. He was admitted to Tripler AMC and treated for his injuries. He was released to duty 2 days later with no duty limitations. There is no record of him returning to Tripler AMC for additional treatment after his release.
3. There is no record of him receiving any medical treatment for his head injuries during the period he was AWOL or after he returned to military jurisdiction.
4. He acknowledged he consulted with counsel prior to requesting discharge under the provisions of chapter 10 of Army Regulation 635-200. If he had proceeded to trial by court-martial he could have submitted any residual effects of his head injury as mitigating factors at that time. However, he chose instead to request a discharge in lieu of trial by court-martial.
5. The letters from Dr. G____ and Dr. B____ show the medical conditions the applicant is currently being treated for 10 years after his discharge. However, there is no evidence that he was suffering from these conditions at the time he was AWOL or when he requested a discharge in lieu of trial by court-martial.
6. The applicant's voluntary request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.
7. The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case. A discharge under other than honorable conditions is normally considered appropriate when a member is separated under the provisions of chapter 10. There is no evidence of procedural or other errors that would have jeopardized his rights.
8. His 62 days of lost time show his service to be unsatisfactory.
9. In view of the above, there is an insufficient basis to upgrade his discharge to general under honorable conditions.
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) AR20130014881
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ABCMR Record of Proceedings (cont) AR20130014881
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