PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           13 January 2000                  
	DOCKET NUMBER:   AR1999034673

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Ernest M. Willcher		Chairperson	
	Mr. Ernest W. Lutz, Jr.		Member	
	Ms. Margaret V. Thompson		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his discharge under other than honorable conditions (UOTHC) be upgraded.

3.  The applicant states that his dependence on pain medication brought on by a physical condition incurred during his initial enlistment was directly related to the events that led to his discharge UOTHC.  Even the doctors who evaluated his case suggested his problems were “probably prolonged” due to the way his case was handled.  His chronic back pain, migraine, the depression precipitated by his physical condition, the demands of his official duties and his family responsibilities led him to try to solve his problems primarily through pain killing medication.  Supporting evidence is as shown in the attachment to the DD Form 149.

4.  The applicant’s military records show that he enlisted in the Regular Army on 7 January 1992.  He completed basic training and advanced individual training and was awarded military occupational specialty 91Q (Pharmacy Specialist).  He was promoted to Specialist/Corporal, E-4 on 1 September 1993.

5.  In 1993 or 1994, the applicant underwent a bone marrow biopsy and shortly thereafter developed sharp, constant back pain.  The evidence of record shows he was given several temporary physical profiles due to low back pain/herniated disc syndrome.  The only available document to show he had a permanent physical profile is an e:mail message provided by the applicant.  In August 1994, he also underwent treatment for chronic migraine headaches.  

6.  On 26 June 1996, the applicant was honorably discharged for the purpose of immediately reenlisting on 27 June 1996.

7.  On 11 February 1998, court-martial charges were preferred against the applicant charging him with dereliction in the performance of his duties by failing to correctly prescribe Percocet and Valium, controlled substances; falsely making a prescription receipt with intent to deceive; wrongfully possessing Percocet and Valium; and stealing Percocet and Valium pills.

8.  On 5 March 1998, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200, Chapter 10 for the good of the service in lieu of trial by court-martial.  The applicant was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and Veterans Administration benefits.  He requested he receive no worse than a general under honorable conditions discharge.  He knew he committed criminal actions but believed the Army medical program bore a good portion of the blame for his conduct by over-prescribing pain medication for him.  He was convinced this led to his “addiction” and his perceived need to get more medication than was prescribed.  Other than that, he served honorably for more than 6 years.
9.  On 16 May 1998, the appropriate authority approved the request and directed the applicant receive a discharge UOTHC.

10.  On 5 June 1998, the applicant was discharged with a discharge UOTHC, in pay grade E-1, under the provisions of Army Regulation 635-200, Chapter 10, discharge in lieu of trial by court-martial.  He had completed 6 years, 4 months and 29 days of creditable active service and had no lost time. 

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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.  A discharge under other than honorable conditions is normally considered appropriate.

12.  Army Regulation 635-200 also states that an honorable characterization is appropriate when the quality of the soldier’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.  Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s).  A soldier will not necessarily be denied an honorable discharge solely by reason of a specific number of convictions by court-martial or actions under the UCMJ Article 15.  Conviction by a general court-martial or by more than one special court-martial does not automatically rule out the possibility of awarding an honorable discharge.  An honorable discharge may be furnished when disqualifying entries in the soldier’s military record are outweighed by subsequent honest and faithful service over a greater period of time during the current term of service.  It is the pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service to be awarded.  A general discharge is a separation from the Army under honorable conditions.  It is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

13.  The Department of Veterans Affairs (VA), in determining qualifications for benefits administered by that agency, generally holds that an individual who accepts a discharge prior to completion of his complete term of obligated service may not be eligible for benefits unless or until the VA or the Service Department determines that the early discharge amounted to a complete and unconditional separation from the service.

14.  On 17 December 1999, the Army Discharge Review Board voted to deny the applicant’s request in a 4 – 1 decision.
CONCLUSIONS:

1. The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

2.  The Board has taken cognizance of the applicant’s good service prior to the incidents for which he was discharged and the reasons he believes led to the incidents and the Board empathizes with his reasoning.  However, the Board also notes that the applicant was a medical specialist in general and a pharmacy specialist in particular, in addition to being a non-commissioned officer.  As such, 
he should have known the only authorized course of action was to continue to work through medical channels to resolve his problem.  If he had a permanent 3 physical profile as indicated by the provided e:mail message and if his physical limitations were limiting his ability to perform his duties (if nothing else the temptation to abuse his position, as did happen, limited those abilities), he should have worked through his chain of command in requesting disability processing.  Therefore, it would not be appropriate to upgrade the applicant’s discharge from the reenlistment commencing on 27 June 1996 at this time.  However, it appears that his honorable discharge of 26 June 1996 should be considered as having been issued as a complete and unconditional separation.

3.  The circumstances of the applicant’s honorable discharge on 26 June 1996 may work an injustice upon him by depriving him of consideration for certain VA benefits for the preceding period of service.

4.  In view of the foregoing, it would be in the interest of justice to correct the applicant’s records as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the applicant was eligible for a complete and unconditional separation from the military service at the time of his honorable discharge on 26 June 1996.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__emw___  __ewl___  __mvt___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Ernest M. Willcher
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999034673	
SUFFIX		
RECON		
DATE BOARDED	20000113	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19980605	
DISCHARGE AUTHORITY	AR 635-200, Ch 10	
DISCHARGE REASON	A70.00	
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.