IN THE CASE OF:	  

		BOARD DATE:	  17 March 2015

		DOCKET NUMBER:  AR20140009612 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's previous request for an upgrade of his discharge under other than honorable conditions (UOTHC).

2.  Counsel states:

   a. On active duty, the applicant developed a mental condition that impaired his judgment, his ability to follow orders, and his ability to function as a reasonable person.  

   b. The U.S. Army, his chain of command, and the physicians that evaluated 
the applicant failed to provide the appropriate evaluations, treatment, and medical discharge that a Soldier who develops a life-changing and permanent mental disability such as schizophrenia deserves.

   c. The applicant received mental health treatment at Lackland Air Force Base 
(AFB), TX but the documentation is lost.

   d. The applicant was incapable of recognizing the consequences of 
accepting a voluntary discharge "for the good of the service."

3.  The applicant's counsel provides a timeline of events and current mental health documentation.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130007648 on 7 January 2014.

2.  The applicant presents medical documentation that supports his mental health after he was released from service.  As such, this is considered new evidence that was not previously considered by the Board.

3.  On 10 May 1988, the applicant enlisted in the Regular Army for a period of 4 years.  He was initially sent to the English as a Second Language (ESL) course at Lackland AFB, TX for 21 weeks, and on 4 November 1988 he was transferred to Fort Sill, OK to undergo his one-station unit training (OSUT).  He completed his OSUT and was assigned to Fort Sill for his first duty assignment.  

4.  On 13 July 1989, he received nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for failure to go to his appointed place of duty and two specifications of disobeying lawful orders from a superior noncommissioned officer (NCO).

5.  On 14 August 1989, he received NJP for failure to go to his appointed place of duty.

6.  On 29 August 1989, charges were preferred against the applicant for two specifications of breaking restriction, two specifications of failure to go to his appointed place of duty, violation of a lawful general regulation by entering a restricted area, disobeying a lawful order from a superior NCO, two specifications of being disrespectful toward a superior NCO, disobeying a lawful command from a superior commissioned officer, and attempting to absent myself from his unit without authority.  His chain of command recommended that he be tried by a special court-martial empowered to adjudge a bad conduct discharge.

7.  On 7 September 1989 after consulting with defense counsel, the applicant submitted a 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 a trial by court-martial.  In his request, he indicated he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted he was guilty of the charges against him or of lesser included offenses that authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood he could receive a discharge UOTHC and he might be deprived of all benefits as a result of such a discharge.  He also elected not to submit a statement in his own behalf.   

8.  On 28 September 1989, he received a UOTHC discharge, for the good of the service.  He completed 1 year, 4 months, and 19 days of active service. 

9.  On 2 August 1993, his mother applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge contending that the discharge was improper because he had symptoms of mental illness prior to his discharge, and that at the time, the applicant was being followed by a psychiatrist and was on medication.  

10.  After reviewing all of the evidence in his case, the ADRB determined that his discharge was both proper and equitable and voted unanimously to deny the request for an upgrade of his discharge on 19 April 1996.  

11.  The applicant's counsel now requests a reconsideration of the applicant's case based on new and material medical documentation never before reviewed by the Board.  He states that no mental health evaluation was ever conducted on the applicant prior to his release from military service.  Furthermore, in keeping with his claim, he states that after the applicant was released from service, he never returned to his home of record in Puerto Rico and ended up being homeless due to his mental status.  The applicant's counsel also provides the following documentation to support his assertions that the events that followed immediately after the applicant's separation prove that he was not of sound mind during his time of service, should not be held accountable for his actions, and  should be granted an upgrade to his characterization due to his medical condition. 

* Timeline of events
* Parkland Health and Hospital System records
* A Psychological Screening report, dated 4 December 1990
* A Psychiatric Examination, dated 11 December 1990
* APS Clinics of Puerto Rico, dated 12 October 2011

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

   a.  Chapter 10 stated a member who was charged with an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt.  Although an honorable or general discharge was authorized, an under than honorable conditions discharge was normally furnished an individual who was discharged for the good of the service.

	b.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

13.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  Although applicant's counsel provides mental health documentation that identifies that he has been diagnosed, post-service, with schizophrenia, undifferentiated typed, which required further psychological and psychiatric evaluations and treatment, there is no documentation in his medical or mental health records to show that he was not competent or had mental health issues while on active duty.    

2.  The applicant's counsel states that the applicant received mental health services while on active duty at Lackland AFB, TX; however, documentation of this treatment is not available.  Therefore, in the absence of evidence proving the applicant received mental health services, was diagnosed, or that a mental health evaluation was warranted prior to his separation, regularity in the discharge process is presumed.  

3.  Furthermore, the applicant was charged with offenses which the authorized punishment included a punitive discharge in order to be discharged under the provisions of chapter 10 of Army Regulation 635-200.  He consulted with defense counsel and voluntarily requested separation from the Army in lieu of trial by court-martial. In doing so, he admitted he was guilty of the offense(s) he was charged with and acknowledged that he could receive a discharge under other than honorable conditions.

4.  Therefore, the type of discharge and the reason for separation are appropriate considering the available facts of the case.

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 to amend the decision of the ABCMR set forth in Docket Number AR20130007648, dated 7 January 2014.



      ___________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)                                         AR20130017567



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ABCMR Record of Proceedings (cont)                                         AR20140009612



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