IN THE CASE OF:	  

		BOARD DATE:	        17 MARCH 2009

		DOCKET NUMBER:  AR20080018255 


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, in effect, reconsideration of his request that his undesirable discharge be upgraded.

2.  The applicant essentially restates his original contentions that he was forced to go absent without leave (AWOL) after finding his mother ill and his siblings basically living on their own when he returned from initial entry training, but now adds that his command contacted the wrong city and had an incorrect social security number (SSN) for him.  He also contends that if his commander had contacted authorities in the correct city when he tried to get confirmation of his family's problems, he would not have had to make the choice between his obligations to his family and the military.  Additionally, he claims that his discharge should be upgraded because he has been a good citizen since his discharge.  Further, he contends that he does not believe that he would have received the type of discharge he received under current standards.  

3.  The applicant provides a self-authored letter, dated 15 October 2008; a self-authored letter, dated 20 October 2008, addressed to a Member of Congress; a 
22 October 2008 letter from the same Member of Congress to the Chief of Army Legislative Liaison; a Privacy Act Authorization Form, dated 24 October 2008; an undated third-party letter from his sister; a third-party letter, dated 25 September 2008, from his mother; and a letter, dated 3 June 2008, from the Army Board for Correction of Military Records (ABCMR) 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 ABCMR in Docket Number AR20080005212, on 29 May 2008.

2.  The applicant, who enlisted in the Regular Army on 16 February 1970 and who had accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on 6 July 1970 for failing to report to a morning formation, was ultimately discharged under the provisions of Chapter 10 (Discharge in Lieu of Trial by Court-Martial), Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  His separation packet is missing from his military records, but his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows that he was AWOL from 3 January 1972 to 22 August 1972, and prior to returning to military control, he was dropped from the rolls of the Army and classified a deserter on 3 March 1972.  In the previous ABCMR proceedings, the applicant essentially contended that he went AWOL because his mother was ill and he had to take care of his siblings, but the ABCMR concluded that while the applicant's contentions were partially supported by the medical evidence provided by the applicant, his AWOL was not a reasonable solution to his family problems.  

3.  All of the documents in the applicant's military records prior to him going AWOL on 3 January 1972 contained the applicant's correct SSN and showed that he was from Portland, Maine.  The 3 March 1972 letter sent from a Personnel Officer at Fort Devens, Massachusetts to the applicant's mother regarding him being dropped from the rolls of the Army and classified a deserter was sent to her address in Cumberland Center, Maine, which was the same address shown for her at the time of the applicant's enlistment.  The only documents in the applicant's military records with an incorrect SSN are his DD Form 214, discharge orders, and the letter barring him from reentry to Fort Dix, New Jersey that was issued to him on the date of his discharge.  His DD Form 214 is also the only document which incorrectly showed that his place of birth was Portland, Oregon instead of Portland, Maine.

4.  The applicant provided third-party letters from his mother and sister that reiterated the problems his family was experiencing around the time he went AWOL, and that he only went AWOL because his request for a hardship discharge was denied.  

5.  He also provided a self-authored letter to a Member of Congress in which he stated that he would not seek benefits under normal circumstances, but that he has been diagnosed with end stage liver disease due to Hepatitis C and requires a transplant, but that without quality medical coverage, he is facing the decision not to go forward with treatment due to financial limitations.
6.  In his self-authored letter, dated 15 October 2008, the applicant stated that after he was returned to military control and placed in the stockade, a military attorney told him that it would take 6 months to 1 year before he could get back home if he tried for a hardship discharge.  He also contends that his attorney told him that he could be home in a few days if he accepted an undesirable discharge, and (emphasis added) he could have the discharge changed at a later date.  

7.  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 [bad conduct or dishonorable] 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.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's discharge an undesirable discharge was normally considered appropriate.

8.  Army Regulation 635-200, paragraph 3-7a, provides, in pertinent part, 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.

9.  Army Regulation 635-200, paragraph 3-7b, further provides, in pertinent part, 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 contends that his request to have his undesirable discharge upgraded should be reconsidered.  

2.  The applicant's contention that his commander contacted authorities in the wrong city and had his incorrect SSN was considered, but found to lack merit.  The evidence of record clearly shows that all of the military documents, with the exception of his DD Form 214 and discharge orders, contained his correct place of birth and SSN.  The 3 March 1972 letter sent to his mother at the time he was dropped from the rolls of the Army was not sent to Portland, Oregon as he now contends.  The fact 

that his DD Form 214 and discharge orders contained an incorrect SSN, and that his DD Form 214 incorrectly showed that his place of birth was Portland, Oregon was noted.  However, these were obviously typographical errors which have no relevance to this request for discharge upgrade case, as neither of these documents played a role in his AWOL, the attempt to contact his mother at the time of his desertion, or his separation proceedings.

3.  The applicant contends that his discharge should be upgraded because he has been a good citizen since his discharge was noted.  However, good post-service conduct alone is not a basis for upgrading a discharge.  Additionally, his contention that he would not have received the type of discharge he received under current standards was considered, but also found to lack merit.  Had the applicant gone AWOL and been classified a deserter under current standards, he most certainly would have also had charges preferred against him which also authorized the imposition of a bad conduct or dishonorable discharge, and the applicant would have either been tried by court-martial or he could have voluntarily requested discharge under the provisions of Chapter 10, Army Regulation 635-200, as he did at the time.  

4.  The fact that the applicant is essentially requesting an upgrade of his discharge in order to obtain veterans benefits was also noted.  The fact that the applicant is in need of medical care is unfortunate; however, the ABCMR does not upgrade discharges simply for the purpose of making an applicant eligible for benefits.  

5.  Additionally, the applicant's contention that a military attorney told him that he could have his discharge changed at a later date was noted.  However, the applicant provided no evidence to support this contention.  While the applicant's separation packet is not available, other separation packets for Soldiers discharged under the provisions of Chapter 10, Army Regulation 635-200 at the time contained evidence that Soldiers were advised by counsel that requests for discharge in lieu of trial by court-martial must be a voluntary choice, and that no person could make, force, or coerce a Soldier to ask for this discharge.  They also warned applicants against widespread rumors that an undesirable discharge could easily be changed to an honorable discharge after release, or that after a certain time it would automatically become honorable, and that these rumors were totally false.  Additionally, they advised Soldiers about the Army Discharge Review Board (ADRB) and the ABCMR, and cautioned them on past percentages of discharges that had been upgraded by these boards, and did this so that Soldiers would know that if, as was likely, they were issued an undesirable discharge, in all likelihood, that discharge would remain with them unchanged.



6.  Although the facts and circumstances pertaining to the applicant’s discharge are not in his available military records, it is clear that the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge.  It is also clear that he voluntarily (emphasis added) requested discharge from the Army in lieu of trial by court-martial.  As he did not provide any evidence which shows that any requirements of law and regulation were not met, or that his rights were not fully protected throughout the separation process, regularity must be presumed in this case.  As a result, the applicant's discharge accurately reflects his overall record of service.

7.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  In view of the foregoing, there is no basis for upgrading the applicant's undesirable 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 AR20080005212, dated 29 May 2008.



      _________XXX_____________
               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)                                         AR20080018255



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ABCMR Record of Proceedings (cont)                                         AR20080018255



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