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ARMY | BCMR | CY2015 | 20150003745
Original file (20150003745.txt) Auto-classification: Denied

		IN THE CASE OF:	

		BOARD DATE:	  6 October 2015

		DOCKET NUMBER:  AR20150003745 


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, in effect, his general discharge be upgraded to an honorable discharge or that he receive a medical evaluation board (MEB) to determine if he should receive a medical separation or retirement.

2.  The applicant states, in effect, the Army Discharge Review Board (ADRB) erred in their decision not to upgrade his discharge and he should have been discharged for medical reasons.  He would like to have his discharge upgraded to attend an Information Technology Program using his Post 9-11 GI Bill benefits. He contends that he did not have to return to the 4th Battalion, 25th Field Artillery Regiment, but he was under the impression that he could get along with his unit and he wanted return.  His friends and family have told him to contact CNN with his story.  However, the military taught him to stay away from the media.  Now looking back on everything he realizes that maybe an MEB board should have been his best option.

3.  The applicant provides a panoramic x-ray, his individual training record, military orders, numerous training certificates, Combat Action Badge Certificate, Field Artillery Tactical Data System Specialist Course Diploma, North Atlantic Treaty Organization (NATO) Certificate, and Department of Veterans Affairs (VA) summary of benefits.

CONSIDERATION OF EVIDENCE:

1.  On 19 August 2009, the applicant enlisted in the Regular Army.  He completed training and was awarded military occupational specialty 13D (Field Artillery Automated Tactical Data Systems Specialist).  The highest rank he held was private first class/pay grade E-3.

2.  A DD Form 458 (Charge Sheet) shows that on 6 August 2012 court-martial charges were preferred against the applicant for:

* six specifications of being disrespectful to a noncommissioned officer
* being unable to perform his duties due to intoxication
* unlawfully striking another Soldier on the face with his fist

3.  On 15 October 2012, having consulted with legal counsel, he was advised of the basis for his contemplated trial by court-martial and the maximum possible punishment under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge or a general, under honorable condition discharge, and of the procedures and rights available to him.

4.  After consulting with counsel, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 10, for the good of the service in lieu of trial by court-martial.

	a.  He indicated he understood he could request discharge for the good of the service because charges had been preferred against him under the UCMJ, one of which or a combination of which authorized the imposition of a bad conduct or dishonorable discharge.

	b.  He stated he was making the request of his own free will, he had not been subjected to any coercion whatsoever by any person, and he had been advised of the implications attached to his request.

	c.  He acknowledged that by submitting a request for discharge he was acknowledging he was guilty of the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.

	d.  He stated he did not desire further rehabilitation because he had no desire to perform further military service.

	e.  He acknowledged he understood that, if his request for discharge was accepted, he could be furnished an under other than honorable conditions discharge or a general, under honorable conditions discharge.  He acknowledged he had been advised of and understood the possible effects of an under other than honorable conditions or a general, under honorable conditions discharge and that, as the result of the issuance of such a discharge he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions or a general, under honorable conditions discharge.

	f.  He waived his rights.  He indicated he would provide a statement in his own behalf but his official military personnel file (OMPF) is void of his statement.

5.  Part II of the applicant’s request for discharge is signed by the Senior Defense Counsel, dated 15 October 2012, and states that the applicant was advised of the possible effects of an under other than honorable conditions discharge.

6.  On 24 October 2012, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10.  He directed that the applicant receive an under other than honorable conditions discharge and reduction in rank to the lowest enlisted rank/grade.

7.  On 15 November 2012, he was discharged under the provisions of Army Regulation 635-200, chapter 10.  However, his DD Form 214 (Certificate of Release or Discharge from Active Duty) was incorrectly prepared and it was not in compliance with the separation authority’s decision.  It shows he received an under honorable conditions (general) discharge.  His DD Form 214 shows he completed 3 years, 2 months, and 27 days of creditable active.  He was awarded the Combat Action Badge and the Afghanistan Campaign Medal with two bronze service stars for his service during the period 25 March 2011 to 14 October 2011.

8.  On 8 January 2014, the Army Discharge Review Board denied the applicant's request to upgrade his under other than honorable conditions discharge.  The Board noted block 24 (Characterization of Service) of his DD Form 214 contained an administrative error which indicated he received a general, under honorable conditions characterization of service.  The Board determined it would be inequitable to make an administrative change to his characterization of service to show he received an under other than honorable conditions discharge.

9.  His medical records are not available for review.  His OMPF contains a commander’s inquiry memorandum for record which shows that while assigned to the Combat Outpost Azimjan Kariz, Kandahar Province, Afghanistan, the applicant was involved in a physical altercation with another Soldier in his unit.  After a heated argument over a piece of equipment the applicant hit the other Soldier in the face with his fist.  The Soldier responded by hitting the applicant in the face and knocking him to the ground.  The applicant sustained a mandible fracture and was subsequently medically evacuated.

10.  He provides his certificates of training, diplomas, and a panoramic x-ray of his mouth and jaw that shows screws in his chin and orders showing he was assigned to the Warrior Transition Unit during his convalescent period before returning to his unit.  Post service the VA awarded him a combined service-connected disability rating of 10 percent.

11.  There are no accompanying service medical/treatment records or other documentation that shows he suffered from an injury, illness, or any medical condition that would have warranted his entry into the Army's Physical Disability Evaluation System (PDES).

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) sets forth policies, responsibilities, and procedures in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  

   a.  Paragraph 3-1 (Standards of unfitness because of physical disability) of this regulation provides that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  The overall effect of all disabilities present in a Soldier whose physical fitness is under evaluation must be considered.  The effect will be considered both from the standpoint of how the disabilities affect the Soldier’s performance and the requirements imposed on the Army to maintain and protect him or her during future duty assignments.  
   
   b.  The regulation further provides that a Soldier charged with an offense under the UCMJ or who is under investigation for an offense chargeable under the UCMJ which could result in dismissal or punitive discharge, may not be referred for, or continue in the disability processing unless:

* the investigation ends without charges
* the officer exercising proper court-martial jurisdiction dismisses the charges 
* the officer exercising proper court-martial jurisdiction refers the charge for trial to a court-martial that cannot adjudge such a sentence

13.  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.  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.  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.

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.  His records show he was charged with six specifications of disrespecting a noncommissioned officer, being too intoxicated to perform his duties, and striking another Soldier in the face with his fist, offenses for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.

2.  His records show he was well advised and fully aware of the consequences of his decision to request discharge in lieu of trial by court-martial.  Further, there is no evidence of mitigating circumstances related to his indiscipline that would warrant changing the characterization of his service.

3.  His injury is not in question.  However, regulatory guidance states a Soldier must be found unfit to reasonably perform the duties of his or her office, grade, rank, or rating because of physical disability in order to be considered for processing for a medical discharge through the Army PDES.  The evidence of record provides no indication the applicant’s injury sustained during a fight with another Soldier was a physically or mentally disqualifying condition that would have supported his separation processing through the Army PDES at the time of his separation. 

4.  Given the available evidence, the applicant was properly and equitably discharged in accordance with the applicable regulation, all requirements of law and regulation were met, and his rights were fully protected throughout the separation process.

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)                                         AR20150003745





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ABCMR Record of Proceedings (cont)                                         AR20150003745



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