IN THE CASE OF:  	  

		BOARD DATE:  21 April 2015  	  

		DOCKET NUMBER:  AR20140015008 


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 general discharge under honorable conditions to an honorable discharge.

2.  The applicant states, in effect:

* he developed symptoms of paranoia while on active duty, implying his condition should be considered a mitigating factor of sufficient weight to overcome the misconduct which led to his separation
* symptoms included thinking people were doing things to him in his sleep, following him, and putting drugs in his food to make him feel tired
* he went to his mother's house; he then thought his mother was putting unknown substances in his food
* his parents decided to check him into a hospital where he was diagnosed with schizophrenia
* after being discharged, he has continued to receive treatment
* his mental illness caused him to become absent without leave (AWOL) and ultimately led to his discharge

3.  The applicant provides a letter from his doctor.

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.  The applicant enlisted in the Regular Army on 25 January 2000.  After completing initial training, he was awarded military occupational specialty 11B (Infantryman).  The highest rank/grade held while on active duty was private/E-2.

3.  Available records show the applicant left his assigned unit at Fort Drum, NY in an AWOL status on 22 February 2001 and was subsequently dropped from the Army rolls as a deserter.  He was apprehended by civil authorities and returned to military control on 29 May 2001.  He was assigned to the U.S. Army Personnel Control Facility at Fort Sill, OK.

4.  On 5 June 2001, the applicant's commander preferred court-martial charges for his period of AWOL.

5.  On 8 June 2001, the applicant consulted with counsel, a military Judge Advocate attorney, and, subsequent to receiving legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  

6.  In his request for discharge, he indicated he:

* was making the request of his own free will and had not been subjected to any coercion whatsoever by any person 
* acknowledged he understood the elements of the offense charged and was guilty of that charge or of a lesser-included offense which could also authorize a bad conduct or dishonorable discharge
* understood 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 Veterans Administration
* understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* elected not to submit a statement in his own behalf

7.  On 1 November 2001, the separation authority approved his request for discharge in lieu of court-martial with the issuance of an under other than honorable discharge.  He was also reduced to the lowest enlisted rank.  On 21 November 2001, he was discharged accordingly.

8.  His original DD Form 214 shows he was discharged under other than honorable conditions in accordance with the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  It also shows he completed 1 year, 6 months and 21 days of net active creditable service with 96 days of lost time.  He was not awarded or authorized any awards or decorations.

9.  On 27 July 2004, the Army Discharge Review Board (ADRB) notified the applicant his under other than honorable conditions discharge had been upgraded to general under honorable conditions.  A revised DD Form 214 was issued.  No changes were made to the separation authority, the narrative reason for separation, the separation code, and the reentry code.

10.  The applicant provides a letter from his doctor, which essentially states:

* he certifies the applicant is his patient
* his symptoms began in 2000 
* he was diagnosed with schizophrenia and was first treated by Doctor Wxxxxxx Cxxxxxxx (now deceased)
* Doctor Cxxxxxxx initiated a prescription of Abilify (an antipsychotic medication primarily used for treatment of schizophrenia and other behavioral health illnesses), which the applicant still takes
* the applicant will require prescription medication for the foreseeable future

11.  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 at any time after the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate.

   b.  Paragraph 3-7a provides that an honorable characterization of service was appropriate when the quality of the member's service generally met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization was clearly inappropriate.

12.  Article 50a of the Uniform Code of Military Justice (UCMJ) addresses a defense of lack of mental responsibility.  It states:

* it is an affirmative defense in a trial by court-martial that, at the time of the commission of the acts constituting the offense, the accused, as a result of severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of the acts
* mental disease or defect does not otherwise constitute a defense
* the accused has the burden of proof for showing the lack of mental responsibility by clear and convincing evidence

13.  Rules for Courts-Martial (RCM), rule 706 (Inquiry into the mental capacity or mental responsibility of the accused), states:

	a.  If it appears to any commander, trial counsel or defense counsel the accused lacked mental responsibility for any offense charged, or lacks capacity to stand trial, that fact and the basis for that belief will be transmitted through appropriate channels to the officer authorized to order an inquiry into the mental condition of the accused.

	b.  The matter will be referred to a board consisting of one or more persons. Each member will be either a physician or a clinical psychologist.  The board shall report as to the mental capacity or mental responsibility or both of the accused.

	c.  Based on the report of findings, the convening authority can suspend the case, dismiss the charges, may take administrative action to discharge the accused, or the charges may be tried.

DISCUSSION AND CONCLUSIONS:

1.  The applicant voluntarily requested discharge under the provisions of chapter 10, Army Regulation 635-200 in lieu of facing a court-martial authorized to give either a bad conduct or dishonorable discharge.  He was charged with being AWOL for 96 days.

	a.  He asserts he suffered from paranoid schizophrenia both at the time he went AWOL and while facing charges for that period of AWOL.  

	b.  He further contends his mental illness was the cause of the misconduct (AWOL) which led to his discharge, implying his mental illness should be considered as a mitigating factor.

	c.  He was initially separated with an under other than honorable conditions discharge but, based upon a decision by the ADRB, his discharge was upgraded to general under honorable conditions.  Just as in his current application, the applicant contended his mental illness caused his misconduct and, apparently, this assertion influenced the ADRB to approve the upgrade of his discharge.  The applicant offers no new evidence concerning his mental illness that would necessitate a reconsideration of the ADRB's decision.

2.  RCM 706 requires an accused to receive a mental evaluation by a board of physicians when it has been identified that he or she may not be mentally responsible for the offense charged.  His request for discharge in lieu of court-martial confirms he consulted legal counsel and his request was counter-signed by that counsel, a Judge Advocate General officer.  Had his symptoms been clearly evident, his counsel would have had a responsibility to raise the issue of the applicant's mental competency under RCM 706.  The evidence neither shows, nor does the applicant offer any proof that this issue was ever brought up and that the applicant was then denied the opportunity to be evaluated.

3.  The applicant was discharged for the good of the service in lieu of trial by court-martial.  He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  Prior to submitting his request, he received legal counsel from an officer of the Judge Advocate General's Corps.  There is no evidence the applicant was not properly and equitably discharged in accordance with the regulations in effect at the time and that all requirements of law and regulations were not met or that the rights of the applicant were not fully protected throughout the separation process.  Absent such evidence, regularity must be presumed in this case.

4.  Based upon the foregoing, there is insufficient evidence upon which to base approval of the applicant's request.

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)                                         AR20140015008





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ABCMR Record of Proceedings (cont)                                         AR20140015008



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