BOARD DATE:	  9 June 2015

		DOCKET NUMBER:  AR20150004158 


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 reconsideration of his previous request for an upgrade of his under other than honorable conditions to honorable due to post-traumatic stress disorder (PTSD).

2.  As a new issue, he requests a change to the narrative reason shown in item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

3.  The applicant states:

   a.  He was suffering from PTSD and other mental disorders at the time and he was placed in treatment at the Department of Veterans Affairs (VA) hospital in Topeka, KS.  He is enclosing copies of his medical and treatment records.  He believes the current classification of "Under Other Than Honorable Conditions" is an inaccurate characterization of his service in the Army.  Such classification disproportionately limits his future opportunities when compared to his overall service record and the events that led to his discharge.  

   b.  He is also requesting a change to the reason for his discharge.  He only accepted the chapter 10 because he was informed by his defense counsel that although he was confident that he would not be convicted on any charges that had been alleged, he would sit in jail for approximately 10 months while waiting for the trial to begin.  Counsel also informed him that the command admitted they

were hoping that by keeping him in civilian jail amongst a rough crowd he would readily agree to a discharge under other than honorable conditions.  Given the two options available to him, he would not characterize his decision as "voluntary."  His number one concern at this time was his wife's unstable mental and physical condition, as well as his own mental well-being.

   c.  He voluntarily entered the Army on 25 October 2003, knowing their country was at war and that he would most likely be deployed.  He wanted to serve his country and assist the Soldiers fighting in Iraq.  He enlisted in the U.S. Army Reserve (USAR) and was assigned to the 960th Quartermaster, Cedar Rapids, IA.  He was extremely proud of his service so much as that he fought to change his status from Reserve component to active duty.  His request was accepted in April 2004 which is when he arrived at his new assignment with the 24th Transportation Company, Fort Riley, KS.

   d.  He was deployed to Iraq on 26 December 2004.  Upon his arrival his wife experienced a miscarriage.  She was extremely depressed and would not seek help.  He spoke with her about seeing a doctor at mental health, but it was not easy for her to open up about her situation.  His wife had suffered several mental traumas in the past and she was still attempting to cope.  The miscarriage sent her into an even more serious bout of depression.  She admitted she was depressed and spoke of suicidal thoughts in her emails.  He took her threats seriously.

   e.  He was very upset about losing his child and visibly distracted by his concerns for his wife's well-being, so he requested an early mid-tour leave under emergency circumstances to return home to help his wife become stabilized while getting her in and speaking with a mental health doctor.  At the time his wife was on active duty stationed at Fort Drum, NY.

   f.  His command in Iraq approved his leave request and he departed Iraq on 17 February 2005.  His concern for his wife increased greatly upon his arrival at Fort Drum.  He barely recognized her as she had lost a tremendous amount of weight (approximately 25 pounds, 10 percent body weight) and had dark circles under her eyes.  She was having trouble keeping her food down and slept no more than two hours a night.  He immediately took her to speak with the unit and brigade chaplains.  Both expressed that they felt it was necessary for his wife to have him present to recover from her severe depression.

   g.  He also spoke with her psychologist and attended several appointments with her.  Her psychologist conducted several tests with his wife and expressed his concerns to him about her condition and recovery as well.  The psychologist also felt that it was necessary for her recovery to have him nearby.  He and his wife sat down with her company commander and discussed her problems.  Her company commander expressed his concerns and support for his wife's needs.  The company commander and both chaplains recommended that he return to his duty station at Fort Riley, KS, and speak with the rear detachment command about the situation.

   h.  He had spoken with the rear detachment battalion sergeant major (SGM) Mxxx throughout his stay at Fort Drum and kept him aware of the situation.  He was given the impression that the information was being relayed to his command in Iraq, although he later learned it was not.  In March 2005, he was directed to speak with the rear detachment battalion commander, Lieutenant Colonel (LTC) Hxxxxx.  Initially the battalion commander did not care about the situation and that he was to return to Iraq as scheduled, but later informed him that if he returned to Fort Riley he would be taken care of.  At the time he thought this was said with compassion, but he later learned that it was a threat.

   i.  He arrived at Fort Riley on 3 March 2005.  The morning of 4 March 2005, the date he was scheduled to return to Iraq, he signed in at the rear detachment as directed by Sergeant First Class (SFC) Wxxxxxxxx (the acting company commander) and SGM Mxxx.  He and his wife met with the unit chaplain and informed him of the situation.  The chaplain counseled both of them and then him separately and advised him to speak with the mental health specialist at Fort Riley.  

   j.  He showed LTC Hxxxxx, SGM Mxxx, and SFC Wxxxxxxx the documents his wife had received from the psychologist and chaplains.  SGM Mxxx summarized the situation and his solution by stating, "miscarriages are unfortunate, but they happen to a lot of women" and that he felt his wife had faked her depression to get him home and she would be fine.  LTC Hxxxxx and SGM Mxxxx then informed him that they were not concerned about his family situation and he was to return to Iraq immediately.  His wife was still a complete wreck and her doctors had advised him that she desperately needed him to stay with her.  He took the situation very seriously and was under a tremendous amount of worry and stress.  He literally could not think straight.  He felt confused and sick with concern at the thought of having to leave his wife in the unstable condition she was currently in.

   k.  His first alleged charge was for being absent without leave (AWOL) when he did not redeploy to Iraq on 4 March.  On that date he had been admitted to a mental health facility that he was referred to via his chain of command.  LTC Hxxxxx ordered the mental health evaluation before sending him back to Iraq based on the recommendation of the chaplain.  The mental health specialist determined that he was unstable and was going to be committed to a mental hospital.  He was admitted to Stormont Vail and then transferred to the Department of Veterans Affairs (VA) hospital and remained there receiving treatment by counseling and heavy medication.  He underwent extensive psychological testing until his conditional release on 30 March 2005.  

   l.  Due to the fact he was committed on 4 March he could not return to Iraq and therefore could not be considered AWOL.  He was not "missing" and did not run away and abandon the Army as an AWOL charge would imply.  His command was fully aware of what was going on and where he was.

   m.  The second alleged charge was for communicating a threat on 30 March 2005.  The allegation was that he stated that he was going to kill LTC Hxxxxx.  On this date, Doctor Dxxxxxxxxx advised that he was recommending his separation from the military via an administrative chapter action and although he wasn't barred from redeployment due to a severe mental condition, he should not be deployed back to Iraq because his disorder could impair his duty to perform and interfere with his effectiveness in a combat theater.  

   n.  LTC Hxxxxx and SGM Mxxxx told him that the doctor's recommendations were irrelevant and they didn't care what the doctor thought because they were sending him back to Iraq on the next flight out in two weeks.  They stated he was attempting to get out of a deployment and that his wife was a liar and had never experienced a miscarriage.  Several other derogatory comments were made about his wife throughout the conversation.  He was heavily medicated at the time and was visibly upset.  The statements he made were clearly not meant literally, they were a figure of speech that people commonly use out of anger.  He never communicated the statements directly to LTC Hxxxxx or made a direct threat to anyone.  

   o.  The third alleged charge was for disobeying an order when upon his release from the civilian hospital LTC Hxxxxx ordered him on 30 March 2005 to redeploy to Iraq despite his doctor's recommendation to the contrary.  His doctor issued him a DD Form 689 (Individual Sick Slip) upon his discharge concerning the heavily sedating effect of the medication he was prescribed.  His doctor also recommended on the Report of Mental Health Evaluation an expeditious administrative separation in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Separations), paragraph 5-13 (Personality Disorder).  Upon learning the plan to discontinue his treatment and redeploy him in two weeks, he became frustrated and upset and requested to be returned to mental health.


   p.  LTC Hxxxxx allowed him to be reevaluated and he was then readmitted to the VA hospital.  He remained in treatment at the VA until he was picked up by the military police on 26 April 2005.  He did not disobey an order and he was granted permission to return to mental health.  The VA doctors recommended he remain in treatment longer.  He was held in Geary County Jail from 26 April through 20 June 2005 with no formal charges ever being brought against him.  He spent two months in jail with real criminals, murderers, and drug offenders, based on the alleged charges.

   q.  To obtain an order for pretrial confinement, LTC Hxxxxx stated that he was a flight risk and a danger to others.  He misrepresented the aforementioned facts in order to do so.  However, he was at no point AWOL.  He was on or traveling to a military base during his entire leave period and never attempted to flee or desert from his military service.  He informed his chain of command properly and was admitted to a military mental health facility.

   r.  During his stay in the Geary County Jail he was allowed to speak with his counsel on several occasions.  Counsel advised him that although he did not feel that the court-martial would hold up, it would be in his best interest to accept the chapter 10 to avoid a very extensive confinement (estimated for approximately 8 to 10 months awaiting trial).  In light of this information and in his best interest and his wife's health he signed the chapter 10.  He recently learned that important case information (such as medical paperwork that disapproved LTC Hxxxxx's claim that he was AWOL) was withheld and never provided to his counsel.

   s.  From his first day in the recruiter's officer, to basic and advanced individual training, the Reserves, and especially his active duty unit, he could not have been more proud to serve his country.  He joined of his own free will during a time when recruiting was at a low and deployment to war was basically a guarantee.  He had the support of his family and friends.  He was always a standout Soldier respected by his chain of command.  He never received anything but positive remarks and counseling from his superiors.  He had no way of predicting the problems that arose and certainly no way of predicting the treatment that he would receive during his time of crisis.

   t.  He had recently lost his mother to cancer and he did not want to lose his wife to the circumstances.  As his doctor suggested, if he had been afforded the time to resolve his family issues then he would have returned to Iraq free of family stress and successfully completed his deployment.  He deserves an honorable discharge because he served his country in a time of war proudly and as an exemplary Soldier.

3.  The applicant provides copies of the following:

* two paragraph 5-18 Other Designated Physical or Mental Conditions memoranda
* DD Form 689
* DA Form 3822-R (Report of Mental Status Evaluation)
* Medication instructions/information for the medications Citalopram Hydrobromide, Clonazepam, Divalproex, and Quetiapine Fumarate
* Stress Management Program Enrollment memorandum
* four DA Forms 4187 (Personnel Action)
* DA Form 2823 (Sworn Statement)
* Confinement Order
* DD Form 458 (Charge Sheet)
* DD Form 2718 (Inmate's Release Order)
* Psychologist Status letter
* two letters of support to the Army Discharge Review Boards (ADRB)

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 AR20090016985 on 8 April 2010.

2.  The applicant contends that he was suffering from diagnosed PTSD and other mental disorders at the time of his discharge and submitted copies of his medical and treatment records.  This is new argument and evidence and will be considered by the Board.

3.  The applicant enlisted in the USAR on 27 January 2003.  He completed training and was awarded military occupational specialty 63B (light wheel vehicle mechanic).  

4.  He enlisted in the Regular Army, in pay grade E-3, on 22 April 2004, for 3 years.  He served in Iraq from 26 December 2004 through 16 February 2005.  

5.  His records contain and he provided copies of the following:

   a.  A paragraph 5-18 Other Designated Physical or Mental Conditions memorandum, dated 25 February 2005, wherein the 3rd Brigade Combat Team, Fort Drum, NY, Chaplain stated the following:

		(1)  The applicant's wife was suffering from emotional trauma due to events which occurred while she was a teenager.  The one person who had brought emotional stability to her life was the applicant.  The frequent and extended separation, which were inevitable in today's military, were not conducive to her treatment but rather produced relapses in her conditions.  For her husband to continue in the military could result in a total emotional breakdown.  

		(2)  The applicant's motives were sincere and he had no problem remaining in the military.  He grew up as a street fighter and had no problem personally going to war.  He liked the military, but his first loyalty was to his wife.  Knowing his wife's conditions affected his ability to perform his duties while deployed, he believed that it would be in the best interest of the Army to grant the applicant a paragraph 5-18.

   b.  A paragraph 5-18 Other Designated Physical or Mental Conditions memorandum, dated 1 March 2005, wherein the 10th Mountain Division, Fort Drum, NY, Chaplain stated the following:

		(1)  The applicant's wife was requesting the presence of her husband due to her mental condition and psychological health situation.  She suffered from severe depression based on her medical doctor's observations and evaluations.  She was currently undergoing treatment on base as well as in Watertown, NY.  That illness or disease caused her health to deteriorate; she indeed needed her husband's presence.  She also requested that her husband be near her new station on Fort Monroe to support and care for her.  She was a good Soldier and wanted to serve her country, but without her husband's presence it would become impossible to fulfill her obligations.

		(2)  The applicant also would like to be afforded the opportunity to care for his sick wife.  His wife's situation had added more stresses to him, his unit, and his family as well.  He was a loyal dedicated Soldier and had served the Army and his country with great pride.  He was recently serving in Iraq, but due to his wife's health situation had to be sent back on emergency leave.  His wife's situation had not improved; therefore, he wanted the opportunity to care for her.  

		(3)  His wife's attending physicians requested the applicant be kept in the United States due to the critical nature of her health and to be there for support of his family.  He had counseled both the applicant and his wife concerning the immediate situation.  It was in the best interest of the military to grant the request.

   c.  A letter, dated 2 March 2005, wherein his wife's psychologist stated an evaluation revealed his wife had a significant mental health condition consistent with the Diagnostic and Statistical Manual of Mental Disorders-IV diagnosis for depressive disorder.  In recent months that condition had contributed to irrational and impulsive thinking, low energy, difficulty concentrating, and low morale.  Her husband's support was a significant positive element for lessening stress and facilitating her mental health treatment.  He recommended the wife engage in outpatient psychological services on a weekly basis for a period of at least 90 days.  Depending on clinical progress, she could also require an evaluation for medication therapy.

6.  His records contain the following:

   a.  A DA Form 4856 (Developmental Counseling Form), dated 4 March 2005, which shows the applicant was counseled for failing to be at his appointed place of duty by not reporting to Atlanta International Airport for forward movement to Iraq to rejoin his unit.  He was advised that the seriousness of that missed movement could lead to Uniform Code of Military Justice (UCMJ) or further action and possible elimination from the military service.  SFC Wxxxxxxxx stated:

		(1)  The applicant's decision was based on his wife's mental conditions and his opinion that he could not return leaving his wife in her current condition.  On 19 February 2005, the applicant contacted her requesting assistance at that time concerning his wife's mental condition and what he needed to do to possibly not return to theater.  He was advised to collect all documents to support the situation and the battalion commander would be informed of the situation.

		(2)  On 23 February 2005, she was informed the applicant would be returning to Iraq.  On 24 February 2005, the applicant stated that he was still collecting documents, but he would fax them on 28 February 2005.  The applicant did not fax the documents nor did she speak with him again until 3 March 2005.

		(3)  The applicant's decision to return to Fort Riley on 3 March 2005 demonstrated his willingness not to return to Iraq.  During a meeting the applicant stated that he would not return to Iraq and requested mental health assistance.  The applicant was escorted to mental health and later admitted for a mental evaluation.  

   b.  A DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)), dated 4 March 2005, which shows a FLAG was initiated against the applicant for adverse action.

7.  His records contain and he also provided copies of the following:
   a.  A DD Form 689, dated 30 March 2005, wherein an Army medical doctor stated the applicant was taking multiple medications that were sedatory.  He requested assistance for the applicant in walking and consideration of the applicant if he had difficulty walking.
   
   b.  A DA Form 3822-R which shows he underwent a mental status evaluation on 30 March 2005 after his discharge from an inpatient psychiatric unit.  The applicant's behavior was found to be normal and he was alert, fully oriented, and anxious.  His thinking process was clear, his thought content was normal, and his memory was good.  The examining psychiatrist stated the following:

		(1)  At the time of the applicant's assessment there was no clinical indication of imminent dangerousness to him or others.  Command watch not indicated.  He diagnosed the applicant with an adjustment disorder with depressed mood and anxiety and a personality disorder, not otherwise specified with borderline/dependent features.

		(2)  He recommended the applicant be considered for expeditious administrative separation from the military in accordance with Army Regulation 635-200, paragraph 5-13.  The applicant did not have a severe mental disorder and was not considered by Army Regulation 40-501 (Standards of Medical Fitness) to be mentally ill.  He did not meet criteria for initiation of a medical evaluation board and was not barred from deployment because of a major mental illness.  However, he did have a personality disorder that could impair his ability to effectively perform his assigned military duties and could interfere with his effectiveness in a combat theater. 

		(3)  The applicant was to return to the emergency room or Community Mental Health Services (CMHS) for any psychiatric emergencies.  He was aware of all available emergency services.

8.  He further provided a copy of a Medication instructions/information for the medications Citalopram Hydrobromide, Clonazepam, Divalproex, and Quetiapine Fumarate pertaining to their usage, side effects, precautions, drug interactions, and warnings.

9.  His records also contain and he also provided copies of the following:

   a.  A Stress Management Program Enrollment memorandum, dated 30 March 2005, which shows he was referred to the CMH Stress Management Program and required to attend 2 psycho-educational group sessions.

   b.  A DA Form 4187, dated 31 March 2004 [sic 2005], which shows his duty status was changed from "Present For Duty" to "Hospital" on 31 March 2005.

   c.  A DA Form 2823, dated 25 April 2005, wherein a Staff Sergeant Rxxxx M. Axxxx stated, in effect, during a meeting with LTC Hxxxxx the applicant updated them on his progress, that he needed to get out of the Army, and he could not perform as a Soldier anymore.  LTC Hxxxxx then advised the applicant that the reasons that he had come back home was for his wife's problems and he had only developed his own problems after he was back and he had told the command in theater that he was going to return when his leave ended.  The applicant then stated he had "fxxxxxx problems that he didn't realize until after counseling with his wife" and that he needed to return to the "fxxxxxx hospital."  The applicant then muttered under his breath that he needed to go back before he hurt someone.  After they escorted the applicant to the hospital, the applicant went on to rant and rave about why they messed with him, he had problems,  and LTC Hxxxxx was out to get him.  They then escorted the applicant to the VA hospital in Topeka, KS.  

   d.  A Confinement Order, dated 25 April 2005, which shows the applicant was placed in pre-trial confinement for missing movement and communicating a threat.  

   e.  A DD Form 458 completed by the Commander, 24th Transportation Company, Fort Riley, KS on 26 April 2005.  The applicant was charged with one specification each of missing movement to Delta Flight 3051 on 4 March 2005, wrongfully communicating a threat to kill on 30 March 2005, and willfully disobeying a lawful command from his superior commissioned officer on 30 March 2005.  On the same day court-martial charges were preferred against him.

   f.  A DA Form 4187, dated 26 April 2005, which shows his duty status was changed from the VA hospital in Topeka, KS, to present for duty.

   g.  A DA Form 4187, dated 26 April 2005, which shows his duty status was changed from present to duty to civilian confinement.  

10.  On 2 May 2005, after consulting with counsel, he waived his right to personal appearance before the 7-day military magistrate's review of his placement in pre-trial confinement

11.  A DD Form 2718, dated 20 June 2005, shows he was released from confinement on the same date.  A DA Form 4187 shows his duty status was changed from civilian confinement to present for duty.
12.  On 2 May 2005, after consulting with counsel, the applicant admitted he was knowingly, willingly, and voluntarily AWOL.  He requested discharge, of his own free will, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial for charges being preferred against him.  He acknowledged he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge and the result of the issuance of such a discharge.  He waived his rights and elected not to submit a statement in his own behalf.  

13.  On 20 June 2005, the separation authority approved the applicant’s request and directed the issuance of an under other than honorable conditions discharge and reduction to pay grade E-1.

14.  He was discharged accordingly on 23 June 2005.  He was credited with completing 11 month and 10 days of active service.  His service was characterized as under other than honorable conditions.  His DD Form 214 lists in:

* Item 18 (Remarks) – "Member Has Not Completed First Full Term of Service"
* Item 26 (Separation Code) – KFS
* Item 27 (RE Code) – 4
* Item 28 – In Lieu of Trial by Court-Martial

15.  He also provided a copy of a letter, dated 27 June 2006, submitted to the ADRB from a member of the U.S. Marine Corps Reserve recommending an upgrade of the applicant's discharge to an honorable discharge.  In the letter, he also reiterated the applicant's contentions and events.

16.  On 21 September 2007, the ADRB denied his petition for an upgrade of his discharge.

17.  He further provided a letter, dated 4 March 2015, wherein the applicant's wife requested an upgrade of his discharge to honorable.  She also reiterated her and the applicant's contentions and events.

18.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulations stated in:

   a.  Paragraph 5-13 – a Soldier could be separated for personality disorder, not amounting to disability under Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that interfered with assignment or performance of duty.  Commanders would not take action prescribed in that chapter in lieu of disciplinary action and required that the diagnosis conclude the disorder was so severe that the Soldier’s ability to function in the military environment was significantly impaired, and that separation for personality disorder was not appropriate when separation was warranted under Army 

   b.  Paragraph 5-18 - a Soldier could be separated for other designated physical or mental conditions.  

   c.  Chapter 10 - a Soldier who had committed an offense or offenses for which the authorized punishment includes a punitive discharge could submit a request for a 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 include the individual's admission of guilt.  Army policy stated that although an honorable or general discharge was authorized, a discharge UOTHC was normally considered appropriate.

   d.  Paragraph 3-7a - an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

   e.  Paragraph 3-7b - a general discharge was a separation from the Army under honorable condition.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

19.  Army Regulation 635-40, in effect at the time, governed the evaluation of physical fitness of Soldiers who could be unfit to perform their military duties because of a physical disability.  It stated the mere presence of an impairment did not, of itself, justify a finding of unfitness because of physical disability.  

20.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time, prescribed the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also established standardized policy for preparing and distributing the DD Form 214.  The regulation stated:

* Item 18 would list the mandatory entry to show whether a Soldier had or had not completed their first full term of service
* Item 26 would list the proper Separation Program Designator (SPD) representing the reason for separation
* Item 28 would list the reason for separation based on the regulatory or statutory authority

21.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA, USAR, and Army National Guard.  Table 3-1 includes a list of RE codes.

* RE-1 applies to persons completing an initial term of active service who were fully qualified when last separated
* RE-3 applies persons who are not considered fully qualified for reentry or continuous service at the time of separation but disqualification is waivable
* RE-4 applies to Soldiers who are separated from their last period of service with a nonwaivable disqualification; they are ineligible for enlistment

22.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states the SPD code of "KFS" is applicable for Soldiers who are discharged under the provisions of Army Regulation 635-200, chapter 10, with the narrative reason of "In Lieu of Trial by Court-Martial."

DISCUSSION AND CONCLUSIONS:

1.  With regard to an upgrade of the applicant's discharge to an honorable discharge.

   a.  The applicant's wife, who was also on active duty, was diagnosed with a depressive disorder.  After returning from Iraq on leave to check on his wife, he was subsequently diagnosed with an adjustment disorder with depressed mood and anxiety and a personality disorder, not otherwise specified with borderline/dependent features.  The examining psychiatrist recommended the applicant be considered for expeditious administrative separation from the military in accordance with Army Regulation 635-200, paragraph 5-13.  

   b.  It appears prior to any paragraph 5-13 action being considered or taken he 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 by court-martial.  He acknowledged the reason for his discharge and that he could be discharged under other than honorable conditions.  The separation authority approved his discharge and he was discharged accordingly on 22 June 2005 after completing 11 months and 10 days of his enlistment.

   c.  There is no evidence of record and he provided none showing his diagnosed adjustment and personality disorders or PTSD prevented his satisfactory completion of his term of enlistment.  An examining psychiatrist stated that the applicant did not meet criteria for initiation of a medical evaluation board and was not barred from deployment because of a major mental illness.  However, he did have a personality disorder that could impair his ability to effectively perform his assigned military duties and could interfere with his effectiveness in a combat theater. 

   d.  He provided insufficient evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of this discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a general or fully honorable discharge.

   e.  Without evidence to the contrary, his administrative separation was accomplished in compliance with applicable regulations in effect at the time and the current version, with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, he is not entitled to an upgrade of his discharge.

2.  With regard to correction of item 28 of his DD Form 214, he was discharged under the provisions of Army Regulation 635-200, chapter 10, by reason of In Lieu of Trial by Court-Martial.  The narrative reason listed in item 28 of his 
DD Form 214 is not improper in accordance with the reason for separation under chapter 10.  There is no error or injustice.  Therefore, he is not entitled to the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x_____  ___x_____  __x__  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  With regard to his request for reconsideration, 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 to amend the decision of the ABCMR set forth in Docket Number Docket Number AR20090016985, dated 8 April 2010.

2.  With regard to his new request, the Board determined that the evidence presented is insufficient to warrant relief.  As a result, the Board recommends denial of his request for correction of item 28 of his DD Form 214.



      _______ _   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.





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