IN THE CASE OF: 

		BOARD DATE:	    29 May 2014

		DOCKET NUMBER:  AR20130019485 


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 discharge.

2.  The applicant states that, based on the documents he is submitting, he believes the discharge upgrade is warranted. 

3.  The applicant provides:

* Certificates awarding him the Army Achievement Medal, dated 12 March 2009 and 13 August 2010
* Certificate of Achievement, dated 30 October 2007
* Certificate of Training, dated 6 March 2009
* Certificate of Signal Regimental Affiliation, dated 10 August 2006
* Diploma for completion of the SATCOM System Operator/Maintainer Course, dated 10 August 2006
* Diploma for completion of the Satellite Systems/Network Coordinator Course, dated 11 December 2006
* Honorable Discharge Certificate, dated 16 December 2007
* Oath of Reenlistment, dated 17 December 2007
* Notification of Condition Unsuitable for Continued Service, dated 20 July 2007
* Fax Cover Sheet, dated 20 March 2009
* DD Form 1610 (Request and Authorization for Temporary Duty (TDY) Travel of DOD Personnel), dated 16 March 2009
* Medical Evacuation Check-in Questionnaire, dated 21 March 2009
* Medical Statement, dated 20 March 2009
* Report of Behavioral Health Evaluation, dated 9 April 2009

CONSIDERATION OF EVIDENCE: 

1.  The applicant's records show he enlisted in the Regular Army on 1 November 2005 and he held military occupational specialty (MOS) 25S (Satellite Communication System Operator/Maintainer).  

2.  In July 2007, he was evaluated at the 18th Medical Group Life Skills Clinic and he was diagnosed with Major Depressive Disorder, Moderate, recurrent; Anxiety Disorder; and Dysthymic Disorder, conditions that existed prior to service.  The military psychiatrist determined he was not suitable for service and recommended the chain of command initiate separation action if the chain of command determined these conditions interfered with his ability to perform his duty. 

3.  On 9 April 2009, he underwent a psychiatric evaluation.  His Report of Behavioral Health Evaluation shows the military psychiatrist diagnosed him with Major Depressive Disorder, in full remission.  His disposition was to return to duty with no change in status and he was psychiatrically cleared for any administrative action by the chain of command.  The military psychiatrist added the applicant: 

* showed no evidence of mental disorder, defective judgment or moral reasoning
* he was recommended for further service

4.  He served in Korea from September 2009 to October 2010, during which assignment he executed a reenlistment on 17 December 2007.  

5.  He was awarded or authorized the Army Good Conduct Medal, National Defense Service Medal, Global War on Terrorism Service Medal, Korea Defense Service Medal, Army Service Ribbon, Overseas Service Ribbon (2nd Award), and Sharpshooter Marksmanship Qualification Badge with Rifle Bar. 

6.  On 17 February 2011, he underwent a physical at Fort Drum, NY and he was found medically qualified for service. 

7.  On 23 March 2011, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12b, for a pattern of misconduct.  The immediate commander listed the reason for this proposed action as the applicant's failing to obey orders by possessing spice, being disrespectful on divers occasions toward noncommissioned officers, possessing spice and an unregistered weapon, being found drunk on duty, making a false official statement, and failing to be at his appointed place of duty.  He recommended a general discharge under honorable conditions.

8.  On 31 March 2011, the applicant acknowledged receipt of the commander's intent to separate him.  He subsequently consulted with legal counsel and he was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive, the possible effects of this discharge, and the procedures and rights available to him.  He waived consideration of his case by an administrative separation board.  He further indicated he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him and he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of a discharge under other than honorable conditions.  He also submitted a personal statement wherein he:

* summarized his military service and requested the separation authority disapprove this request
* stated he was a great asset and felt the Army would make a terrible mistake in throwing out a Soldier who has so much to offer
* stated that it would be a great loss for the Army and the country to eliminate such a valuable asset

9.  Subsequent to this acknowledgement, the immediate commander initiated separation action against him under the provisions of paragraph 14-12b of Army Regulation 635-200.

10.  On 1 April 2011, his intermediate commander recommended approval of the separation action with the issuance of a general discharge.  He stated that the applicant had received two field grade Article 15s since December 2010.  He continues to display attributes that are not compatible with military service.  He has been arrested twice and he does not have the attitude for continued service. 

11.  Prior to the applicant's separation packet reaching the separation authority, the applicant committed violations that were deemed triable by a special court-martial.  He was placed in pre-trial confinement on 4 April 2011.

12.  On 10 June 2011, the applicant's chain of command preferred court-martial charges against him for one specification of willfully disobeying a lawful order and one specification of disrespecting a noncommissioned officer and approaching him in a threatening way. 
13.  Although not available for review with this case, it appears subsequent to preferring court-martial charges against him 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 Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  It also appears that following consultation with legal counsel he requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  In his request for discharge, he would have indicated that:

* he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person
* he understood 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 discharge 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 Department of Veterans Affairs
* he acknowledged he could be deprived of his rights and benefits as a veteran under both Federal and State laws

14.  On 13 June 2011, the applicant's immediate, intermediate, and senior commanders recommended approval of the discharge with the issuance of an under other than honorable conditions discharge.

15.  On 22 June 2011, consistent with the chain of command's recommendations, the separation authority approved the applicant's request for discharge in accordance with Army Regulation 635-200, chapter 10 and directed the issuance of an under other than honorable conditions discharge.  On 24 June 2011, the applicant was discharged accordingly. 

16.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of chapter 10 of Army Regulation 635-200 with an under other than honorable conditions characterization of service.  He completed 5 years, 5 months, and 6 days of active service and he had lost time from 5 April 2011 to 22 June 2011. 

17.  On 11 April 2012, the Army Discharge Review Board (ADRB) reviewed his discharge but found it proper and equitable.  Accordingly, the ADRB voted to deny his request for an upgrade.  
18.  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 1-33 states except in separation actions under chapter 10 and as provided in paragraph 1-33b, disposition through medical channels takes precedence over administrative separation processing.

	b.  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.

	c.  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.  He underwent a mental status evaluation in 2009.  At that time, he was diagnosed with Major Depressive Disorder, in full remission.  His disposition was to return to duty with no change in status and he was psychiatrically cleared for any administrative action b the chain of command.  The military psychiatrist stated the applicant showed no evidence of mental disorder, defective judgment or moral reasoning and he was recommended for further service.  In fact, he reenlisted shortly thereafter and continued to serve in Korea and other locations. 

2.  He began exhibiting a pattern of misconduct that included failing to obey orders, possessing spice and an unregistered weapon, being disrespectful to noncommissioned officers, being found drunk on duty, and making a false official statement.  Accordingly, his chain of command initiated separation action against him for a pattern of misconduct.  However, prior to approval of this separation, court-martial charges were preferred against him.  As such, the administrative separation action was halted pending the outcome of the court-martial.  

3.  He could have elected to face the court-martial if he believed his behavioral health condition contributed to his misconduct but he did not do so and appears to have elected a discharge under chapter 10.  By regulation, in the case of a chapter 10, administrative separation processing disposition takes precedence over medical processing. 

4.  The applicant 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.  Although not available for review with this case, it is clear 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.

5.  Based on this record of indiscipline, his 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 either a general or an honorable discharge.

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)                                         AR20130019485





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130019485



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1