BOARD DATE: 29 March 2016 DOCKET NUMBER: AR20150008996 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x_____ ___x_____ __x___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 29 March 2016 DOCKET NUMBER: AR20150008996 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 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. BOARD DATE: 29 March 2016 DOCKET NUMBER: AR20150008996 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 under other than honorable conditions discharge. 2. The applicant states he was not on the right medication and did not receive the right treatment. He knows what he did was wrong and asks that his discharge be upgraded so that he can get help from the Department of Veterans Affairs (VA). 3. The applicant provides no additional evidence in support of his request. 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. On 25 September 2007, the applicant enlisted in the Regular Army. After completing his initial entry training, he was awarded military occupational specialty 91B (Wheeled Vehicle Mechanic). 3. He deployed to Iraq during the periods 7 October 2008 – 3 March 2009 and 9 November 2010 – 23 August 2011. 4. On 13 July 2011, the applicant underwent a mental status evaluation, wherein the examining official noted: a. The applicant was found to be of normal behavior and cooperative; with no obvious impairments. However, he was found to be frequently impulsive. b. The applicant was determined to be mentally responsible, able to distinguish right from wrong and adhere to the right, with the mental capacity to understand and participate in [separation] board proceedings. c. The applicant was diagnosed with having an adjustment disorder with depressed mood: occupational problem. d. It was recommended that the applicant's assigned duties be of low stress and should not involve leadership responsibilities. It was further recommended that he be provided increased supervision. e. The applicant tested negative for both post-traumatic stress disorder and mild traumatic brain injury screening. These conditions were either not present or, if present, did not meet Army Regulation 40-501 (Standards of Medical Fitness) criteria for a medical evaluation board. f. It was determined that further rehabilitative efforts would not be effective. g. The applicant reported a history of alcohol abuse. h. The applicant’s personality and behavior characteristics would likely significantly impair his adjustment and performance in a deployed environment. The applicant’s expeditious removal from theater was strongly advised. 5. On 1 August 2011, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniformed Code of Military Justice (UCMJ), for assault on, and communicating a threat towards, a commissioned officer, on or about 6 June 2011. 6. On 12 August 2011, charges were preferred against the applicant for: * threatening a commissioned officer with a weapon * two specifications of using disrespectful language toward a noncommissioned officer * communicating a threat to injure members of his chain of command 7. He was subsequently ordered to pre-trial confinement. 8. On 16 August 2011, he consulted with counsel who advised him of the basis for his contemplated trial by court-martial and the maximum permissible punishment under the UCMJ, of the possible effects of an under other than honorable conditions discharge, and of the procedures and rights available to him. Subsequent to receiving this legal counsel, he voluntarily requested discharge in lieu of trial by court-martial, under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 10. a. In his request for discharge, he acknowledged he understood that by requesting discharge, he was admitting guilt to the charges against him or to lesser-included offenses that also authorized the imposition of a bad conduct or dishonorable discharge. b. He further acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the VA, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. He declined to submit a statement in his own behalf. 9. On 25 August 2011, the separation authority approved the applicant's request and directed his discharge under the provisions of Army Regulation 635-200, chapter 10. The separation authority further directed that the applicant be reduced to the lowest enlisted grade and receive an under other than honorable conditions discharge. 10. On 13 September 2011, he was discharged in accordance with the separation authority's decision, with his service characterized as under other than honorable conditions. He completed 3 years, 11 months, and 19 days of total active service. 11. On 17 May 2013, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. b. Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. 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. DISCUSSION: 1. The applicant's request for an upgrade of his under other than honorable conditions characterization of service was carefully considered. 2. The evidence of record confirms the applicant was charged with an offense for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. 3. The evidence shows he requested discharge in lieu of trial by court-martial  voluntarily, willingly, and in writing. He was properly and equitably discharged in accordance with the regulations in effect at the time. There is no indication of procedural errors which would have jeopardized his rights. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. Further, his discharge accurately reflects his overall record of service. 4. There is no evidence that medication or a lack of treatment contributed to his misconduct. The available records indicate he was referred for mental health evaluation due to threats he made against an officer and members of his chain of command; his service was unsatisfactory. 5. As evidenced by his misconduct that resulted in court-martial charges, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct rendered his service unsatisfactory; therefore, there is no basis upon which to grant the requested relief. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150008996 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150008996 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2