BOARD DATE:	  16 September 2014

		DOCKET NUMBER:  AR20130018863 


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 conditions (UOTHC) discharge to an honorable discharge (HD).

2.  He states he was diagnosed with chronic post-traumatic stress disorder (PTSD); poly-substance abuse; major depressive disorder, unipolar; and attention deficit hyperactivity disorder (ADHD).  He was coerced into taking a separation instead of standing and fighting before a court-martial because PTSD and veteran suicide weren't cared about at the time.  His separation was "an injustice and scapegoat operation" directed at a noncommissioned officer (NCO) who was seeking mental health treatment for PTSD.

3.  He provides no documentary evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  On 13 July 2000, the applicant enlisted in the Regular Army.  After completing initial entry training, he was awarded military occupational specialty 13F (Fire Support Specialist), and he was assigned to duty at Fort Riley, KS.  

2.  His record contains an Army Commendation Medal Certificate showing he received the award for service as a member of the 2nd Brigade Combat Team during Operation Iraqi Freedom from 15 February to 28 April 2003.  

3.  On 10 August 2003, he reenlisted in the RA, and he was promoted to sergeant/E-5 effective 1 March 2004.
4.  His record shows he was counseled for:

* failure to report on 8 September and 6 October 2004
* being out of ranks/missing formation on 27 September 2004

5.  A DA Form 3947 (Military Police Report), dated 17 December 2004, shows that, after the applicant was involved in a vehicle accident on Fort Riley, an investigation revealed his state operator's license was suspended.  

6.  His record shows he was counseled for:

* failure to report on 10 February 2005
* sleeping while on duty on 11 March 2005
* failure to notify his chain of command of appointments on 23 March 2005
* failure to report/dereliction of duty on 3 and 4 April 2005

7.  In response to counseling for failure to notify his chain of command of appointments on 23 March 2005 he stated:

* his appointment was not scheduled
* he had called his psychologist and informed him of his current problems, and the psychologist requested he come in for an emergency session
* he informed his section chief and met with the psychologist

8.  A DA Form 3349 (Physical Profile), dated 1 April 2005, shows the applicant was given a profile for chronic PTSD and combined-type ADHD.  The form shows that medical personnel indicated he needed a Medical Evaluation Board (MEB)/Physical Evaluation Board (PEB).  

9.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 28 June 2005, shows that:

* he presented for evaluation after hospitalization
* there was no clinical indication of imminent danger to self or others
* he had the capacity to understand his current circumstances and participate in any administrative action deemed appropriate by the command
* his diagnoses were chronic PTSD, combined-type ADHD, polysubstance abuse (by history), and degenerative disc disease
* an MEB had been initiated 

10.  On 7 July 2005, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for:
* negligently failing to stay awake on duty on or about 11 March 2005
* failing to go at the time prescribed to his appointed place of duty on four occasions in 2004 and on four occasions in 2005

11.  An Incident Report shows the applicant left his duty station during his shift on 12 July 2005.  At approximately 1630 hours, he and another Soldier, a private, were found in a room in which a half-smoked marijuana cigarette was also found.  After being taken into custody and stating he required medication for mental health disorders, an MP made arrangements for him to obtain and take his medication.  Shortly after, he collapsed, lost consciousness, and had a decrease in breathing.  He was taken to the emergency room for treatment.  It was determined there was probable cause for a command-directed urinalysis, and arrangements were made for a command-directed urinalysis for the following day.  

12.  A DA Form 3822-R, dated 14 July 2005, shows that:

* evaluation revealed he did not have a major mental illness
* he did have a disorder that manifests with disturbances of perception, thinking, emotional control and behavior that were sufficiently severe to impair his ability to effectively perform his duties
* his symptoms were confounded by continued drug use
* he was not amenable to treatment or to command interventions
* his diagnoses were polysubstance abuse, PTSD, and ADHD

13.  The examining psychiatrist found he was unsuitable for continued military service based on his diagnoses and recommended his expeditious administrative separation in accordance with Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17 (Other Designated Physical or Mental Conditions), or any other administrative action deemed appropriate by the command.  The examining psychiatrist further stated the applicant did not have a severe mental disorder and was not considered to be mentally ill under Army Regulation 40-501 (Standards of Medical Fitness).  He stated the applicant could become a danger to himself due to progressive physical illness in the future with little or no warning.  From a medical perspective, command watch was not indicated.  

14.  On 14 July 2005, he was counseled for leaving his place of duty, being in a lower-enlisted Soldier's room while illegal drugs were present, and for a possible drug overdose involving an illegal narcotic.

15.  A DD Form 458 (Charge Sheet), dated 27 July 2005, shows he was charged with:
* going without authority from his appointed place of duty on or about 12 July 2005
* wrongfully possessing some amount of marijuana on or about 12 July 2005
* wrongfully using cocaine between on or about 9 and on or about 12 July 2005
* knowingly fraternizing with a private on or about 12 July 2005 by smoking marijuana with said private in violation of the custom that U.S. Army noncommissioned officers shall not fraternize with enlisted persons on terms of military equality

16.  His chain of command recommended he be tried by a special court-martial empowered to adjudge a bad conduct discharge. 

17.  On 5 August 2005, he consulted with counsel who advised him of the basis for his contemplated trial by court-martial and the maximum possible punishment authorized under the UCMJ, the effects of a UOTHC discharge, and the procedures and rights available to him.

18.  After consulting with counsel, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  

	a.  He acknowledged that:

* he was making the request of his own free will and had not been subjected to any coercion whatsoever by any person
* he could request discharge for the good of the service because he was guilty of one or more of the charges, or lesser included offenses contained therein, preferred against him under the UCMJ that authorized the imposition of a bad conduct or dishonorable discharge
* under no circumstances did he desire further rehabilitation for he had no desire to perform further military service
* he understood he could be discharged UOTHC 
* as a result of such a discharge, he would be deprived of many or all Army benefits and be ineligible for many or all benefits administered by the Department of Veterans Affairs
* he could be deprived of his rights and benefits as a veteran under Federal and State laws
* he could expect to encounter substantial prejudice in civilian life because of a UOTHC discharge

	b.  In his request, he asked that he be given a general discharge (GD) under honorable conditions.  He stated:

		(1) He had served in Iraq from March 2003 to March 2004.  While in Iraq, a shell exploded near him hurting his back, and he now had osteoarthritis in his spinal cord.  Since coming back from Iraq, he had also been diagnosed with chronic PTSD, major depressive disorder, and ADHD.  His drug use was an effort to medicate his mental health issues.  

		(2) He had not been able to deal with what happened to those around him, particularly the killing of his company commander in front of him while traveling in Iraq.  A round from one of his Soldier's weapons discharged into the company commander's head, killing him instantly.  He was unable to get the image of his dead commander out of his head even though it was almost 2 years later.  He blamed himself for what happened, and he had been unable to deal with the memories and guilt.

		(3) He did not know how he would come to terms with his issues in the future.  He would need medical care to help him, and he was afraid that an other than honorable discharge would affect his ability to get that medical care.  

19.  On 8 August 2005, the separation authority approved the applicant's request for discharge for the good of the service and directed his discharge UOTHC.  On 15 August 2005, he was discharged in accordance with the separation authority's decision.  His DD Form 214 shows he completed 5 years, 1 month, and 2 days of net active service.

20.  On 20 August 2011, the applicant applied to the Army Discharge Review Board (ADRB) to request an upgrade of his discharge and a change in the reason for his discharge.  In his application, he stated he had been diagnosed with several medical conditions and had no diagnosis of the conditions prior to entering military service.  On 27 August 2012, he testified before the ADRB in a personal appearance hearing.

21.  The ADRB Case Report and Directive shows the ADRB considered the applicant's medical conditions.  The ADRB analyst noted that:

* the applicant's discharge complied with the applicable law and regulations
* the applicant's mental evaluation on 14 July 2005 deemed him unsuitable for further military service and the medical authority recommended expeditious administrative separation


* the medical authority found the applicant did not meet the criteria for initiation of an MEB
* the medical authority found the applicant had a minor mental disorder that impaired his ability to effectively perform his assigned military duties
* the applicant was aware of emergency psychiatric services and access to Community Mental Health Service (CMHS)
* the applicant should have been enrolled in the Army Substance Abuse Program (ASAP) for aid in overcoming his drug problem
* under the provisions of Army Regulation 600-85, paragraph 3-8, the applicant could have self-referred to an ASAP counseling center for assistance

22.  The five-member ADRB panel voted unanimously to make no change in the applicant's discharge.  On 3 October 2012, the President, ADRB, informed him that the ADRB had determined he was properly and equitably discharged.

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

	a.  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.  Commanders will ensure that a Soldier is not coerced into submitting a request for discharge 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 UOTHC is normally considered appropriate.

	b.  Paragraph 3-7a provides that an HD 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.

	c.  Paragraph 3-7b provides that a GD 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.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The applicant's record shows he admitted he was guilty of an offense for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  All requirements of law and regulation were met and his rights were fully protected throughout his discharge process.

2.  He contends that he was coerced into taking a separation instead of standing and fighting before a court-martial and that his separation was "an injustice and scapegoat operation" directed at an NCO who was seeking mental health treatment for PTSD.  The available records indicate he had seen a psychologist, but nothing in the available records contradicts the psychiatrist's finding, on 14 July 2005, that he was not amenable to treatment or to command interventions.  

3.  Although it appears his medical diagnoses may have contributed to his misconduct, one cannot ignore the fact that he was not amenable to treatment or to command interventions.  There is no evidence indicating he should not be held accountable for not being amenable to treatment or command interventions.  As a result of persistent misconduct, not being amenable to treatment or command interventions, and requesting discharge in lieu of trial by court-martial, he left few options for his chain of command.  

4.  His service following his reenlistment was clearly unsatisfactory, and the available evidence does not show any factors sufficiently mitigating to warrant changing the separation authority's determination that his service was UOTHC.  Therefore, there is an insufficient basis upon which to grant the 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)                                         AR20130018863





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130018863



8


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1