IN THE CASE OF:	  

		BOARD DATE:	       27 January 2009

		DOCKET NUMBER:  AR20080015619 


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 an earlier request that his discharge be upgraded.

2.  The applicant states, in effect, that documents were altered and that he was "railroaded" into his discharge.

3.  The applicant provides a copy of a DA Form 2496 (Disposition Form) and six self-authored letters in support of this 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 AR20080005023 on 19 June 2008.

2.  The applicant provides a new argument which was not previously considered by the board.  He specifically contends that the DA Form 2496, subject:  Request for Discharge for the Good of the Service, dated 10 July 1975, was altered and he did make a statement contrary to what is indicated on the form.  Therefore, this new argument warrants consideration by the Board.


3.  The applicant enlisted on 28 October 1970 for a period of 3 years.  He served as a wheel vehicle repairman and was released from active duty on 25 October 1973.

4.  After a break in service, the applicant enlisted on 13 November 1974 for a period of 3 years.

5.  On 28 April 1975, nonjudicial punishment was imposed against the applicant for being derelict in the performance of his duties.  His punishment consisted of a reduction to E-3 and a forfeiture $50.00 per month for one month.

6.  A DD Form 458 (Charge Sheet) shows the applicant went absent without leave (AWOL) on 20 May 1975 and returned to military control on 24 June 1975. On 30 June 1975, charges were preferred against the applicant for the AWOL period.  Trial by special court-martial was recommended.

7.  On 10 July 1975, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  He indicated in his request that he understood that he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration and that he might be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected not to submit a statement in his own behalf.

8.  On 30 July 1975, the separation authority approved the applicant's request for discharge and directed he be furnished a general discharge.

9.  On 4 August 1975, the applicant was discharged with a general discharge 
under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  He had served a total of 3 years, 7 months, and 19 days of creditable active service with 35 days of lost time due to being AWOL.

10.  The applicant provided six self-authored letters which essentially state that he was treated unfairly by his chain of command.  This information was previously considered with his initial application.

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

12.  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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  At the time, an undesirable discharge was normally considered appropriate.

13.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded has been carefully considered and found to be without merit.

2.  The applicant contends that his DA Form 2496 request for voluntary discharge under the provisions of chapter 10, Army Regulation 635-200 was altered and that contrary to what the form indicates, he submitted a statement in his own behalf.  However, these documents were prepared and processed over 30 year ago and there is no corroborating evidence in the available records and the applicant did not submit any evidence to substantiate his claim.  Lacking evidence to the contrary, it is presumed that all requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process.

3.  The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Separations under the provisions of chapter 10 of Army Regulation 635-200 are voluntary separations, in which the applicant must admit guilt of the charges.

4.  The available evidence shows the applicant was punished under the UCMJ for being derelict in the performance of his duties and had 35 days of lost time due to being AWOL.  Based on this 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 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 ser forth in Docket Number AR20080005023, dated 19 June 2008.



      ___________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)                                         AR20080015619



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ABCMR Record of Proceedings (cont)                                         AR20080015619



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