IN THE CASE OF:	  

		BOARD DATE:	  	  

		DOCKET NUMBER:  AR20080005378


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 for an upgrade of his discharge.

2.  The applicant states that he had been in and out of foster homes and thought that the Army was the answer.  He also states that it helped him in some ways, but he was confused.  He continues to state that he has regretted it all of his life and is now sick with cancer and needs medical help.  He further states that he was unsettled at the time of his service and has since changed his life.

3.  The applicant provides a self-authored statement, eight statements from personal associates, ten copies of his discharge orders, a copy of FC Form Letter 368 [debt collection letter], a copy of a veterans’ benefits information sheet, a copy of a court order for legal name change, and a copy of an Army Review Boards Agency letter in support of his application.

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 AR20060011843 on 1 March 2007.

2.  The applicant’s military service records show that he enlisted in the Regular Army on 17 November 1972.  He did not complete advanced individual training nor was he was awarded a military occupational specialty.

3.  On 7 December 1972, nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) was imposed against the applicant for failure to obey a lawful order issued by his commanding officer to remain in the company area on or about 3 December 1972 in violation of Article 92.  The applicant received punishment in the form of 14 days of extra duty and forfeiture of $67.00 per month for a period of 1 month.

4.  On 12 January 1973, nonjudicial punishment under Article 15 of the UCMJ was imposed against the applicant for failure to report at the time prescribed to his appointed place of duty on or about 10 January 1973 in violation of Article 86. 
The applicant received punishment in the form of 14 days of restriction, 14 days of extra duty, and forfeiture of $71.00 per month for a period of 1 month.

5.  On 7 February 1973, nonjudicial punishment under Article 15 of the UCMJ was imposed against the applicant for behaving disrespectfully to his superior commissioned officer on or about 28 January 1973 in violation of Article 89.  The applicant received punishment in the form of forfeiture of $150.00 per month for a period of 2 months and 30 days of correctional custody.

6.  DA Form 2627-2 (Record of Appellate or Other Supplementary Actions Under Article 15, UCMJ), dated 12 February 1973, shows that the punishment in excess of 5 days of correctional custody was remitted.

7.  DA Form 268 (Report for Suspension of Favorable Personnel Actions), dated 4 April 1973, shows that the applicant’s records were flagged for departing absent without leave (AWOL) on 2 April 1973.

8.  On 11 April 1973, the applicant was denied advancement to the rank of private/pay grade of E-2 until further notice by reason of his record of AWOL in the company.

9.  DA Form 268 (Report for Suspension of Favorable Personnel Actions), dated 16 April 1973, shows that the applicant’s records were flagged for departing AWOL on 16 April 1973.

10.  On 5 June 1973, the applicant requested voluntary discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations).  He indicated in his request that he understood that he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He also indicated that he understood the possible effects of an undesirable discharge and that 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, that he could be deprived of his rights and benefits as a veteran under both Federal and State law, and that he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.  He further indicated that he consulted with counsel and was fully advised in this matter.

11.  Two DA Forms 188 (Extract Copy of Morning Report), dated 22 June 1973, show that the applicant departed AWOL on 2 April 1973 and surrendered from AWOL on 5 April 1973, departed AWOL on 16 April 1973 and surrendered from AWOL on 19 April 1973, and departed AWOL on 6 May 1973 and was apprehended and confined on 21 May 1973.

12.  DD Form 458 (Charge Sheet), dated 26 June 1973, shows that the applicant was charged with three specifications of violation of Article 86 of the UCMJ for unauthorized absence from his place of duty for the periods of on or about 2 April 1973 until on or about 5 April 1973, on or about 16 April 1973 until on or about 19 April 1973, and on or about 6 May 1973 until on or about 21 May 1973.

13.  On 2 July 1973, the separation authority approved the applicant’s request for discharge for the good of the service under the provisions of Army Regulation 635-200 and directed that he receive an undesirable discharge.

14.  Headquarters, 101st Airborne Division (Airmobile) and Fort Campbell, Special Orders 145, dated 11 July 1973, show that the applicant received an undesirable discharge for the good of the service effective 11 July 1973 under the provisions of paragraph 10-2 of Army Regulation 635-200.

15.  Headquarters, 101st Airborne Division (Airmobile) and Fort Campbell, FC Form Letter 368, dated 11 July 1973, shows that the applicant was indebted to the U.S. in the amount of $311.69 at the time of his discharge.

16.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows that he was discharged from active duty under other than honorable conditions for the good of the service under the provisions of paragraph 10-2 of Army Regulation 635-200 on 11 July 1973.  His DD Form 214 shows that he served a total of 6 months and 13 days of creditable active military service and had 43 days of lost time due to AWOL.  The highest rank he achieved was private/pay grade E-1.

17.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows that he lost time under Section 972, Title 10, U.S. Code, for unauthorized AWOL for 7 days for the period 2 April 1973 to 8 April 1973 and for 36 days for the period 16 April 1973 to 21 May 1973.

18.  The applicant’s military service records do not show any significant acts of valor during his military service.

19.  Washington County Probate Court order, dated 17 February 1995, ordered, adjudged, and decreed that the applicant’s legal name be changed in accordance with his petition.

20.  Army Review Boards Agency Support Division letter, dated 20 May 2003, informs the applicant that his application for correction of his military record was closed without action based on the unavailability of supporting documents as a result of his records being on loan to another agency and provided him with instructions for resubmitting his application.

21.  The applicant’s undated self-authored statement describes, in effect, his childhood hardships in foster and adoptive care leading to his decision to join the Army.  He alleges instances of mental, physical, and sexual abuse by his adoptive parents.  He states that he was lonely and confused while in the Army and went AWOL.  He continues to state that he had changed his mind and was returning to the Army when he was apprehended.  He states that he met his wife after his discharge and together they adopted a child.  He continues to state that he worked until he was injured on the job in 1994; he is now disabled and was diagnosed with cancer in 2007.  He states that he is very sorry for what happened in the service, that he loves his country very much, and that he has always regretted this.  He concludes that he “was given an unjust discharge and left the Army feeling I was treated as bad or worse than I had been treated before I joined.”

22.  Eight statements from the applicant’s wife and personal associates attest to his good character and participation in church activities.  The statement provided by the applicant’s wife requests, in effect, an upgrade of his discharge to meet eligibility for veterans’ medical care.

23.  An undated veterans’ benefits information sheet titled “Information on Veterans Benefits” describes college benefits available to eligible veterans and instructions for application.

24.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

25.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of this 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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

26.  Army Regulation 635-200, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

27.  Army Regulation 635-200, 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for reconsideration for upgrade of his discharge was carefully considered and determined to be without merit.

2.  The applicant contends that his discharge should be upgraded because he was unsettled at the time of his service and that he has since changed his life and is now in need of medical benefits.  The applicant's contentions regarding his post-service conduct and need for medical benefits were considered; however, commendable post-service conduct and eligibility for medical benefits, while sympathetic, are not sufficient basis for upgrading a discharge.

3.  The applicant's military service records show that he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  After consulting with defense counsel, the applicant voluntarily requested discharge in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to either a general or an honorable discharge.

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 to amend the decision of the ABCMR set forth in Docket Number AR20060011843 dated 1 March 2007.



      ____________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)                                         AR20080005378





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ABCMR Record of Proceedings (cont)                                         AR20080005378



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