IN THE CASE OF:	  

		BOARD DATE:	       5 May 2009

		DOCKET NUMBER:  AR20090001622 


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 earlier request for upgrade of his under other than honorable conditions discharge to a general, under honorable conditions or an honorable discharge.

2.  The applicant states, in effect, that based on favorable decisions made in similar cases, his discharge should also be upgraded.  

3.  The applicant provides, in support of his application, three letters of support and four Army Board for Correction of Military Records (ABCMR) proceedings, wherein various applicants had requested and received relief.

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 AR20070018869 on 10 June 2008.

2.  The three letters of support and four ABCMR case proceedings were not previously considered by the Board; therefore, they are considered new evidence and as such warrant consideration by the Board.

3.  The applicant enlisted in the Regular Army on 20 November 1980 in the rank of private first class (PFC)/pay grade E-3.  He subsequently completed a tour of duty in the Federal Republic of Germany and returned to the United States for duty at Fort Benning, Georgia.
4.  In February 1984, the applicant went absent without leave (AWOL) and was dropped from the rolls (DFR) of the Army.  On 8 May 1984, charges were preferred against him for AWOL for the period from 28 February 1984 to 8 May 1984.  The applicant requested an administrative discharge for the good of the service - in lieu of trial by court-martial.  His request was granted and he was discharged accordingly.

5.  In the original Board case, the applicant contended that he had been harassed by his first sergeant and could not get any help.  He learned later that his first sergeant, who was then a command sergeant major, was court-martialed for mistreatment of his subordinates.  He felt that the circumstances surrounding his former first sergeant's court-martial merit upgrading his discharge.  The Board considered the applicant's overall record, to include his indiscipline, and determined that his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The Board denied his request.

6.  The four ABCMR case proceedings provided by the applicant show that three individuals were administratively discharged in lieu of court-martial.  In one case the Board noted that the applicant's Army Good Conduct Medal had not been properly recorded in his records.  In two of the cases the Board determined that the characterization of service was too harsh when compared to the individual's length and quality of service.  The fourth case was a discharge for unsuitability and involved a psychiatric evaluation that warranted favorable consideration.  

7.  The three letters of support from his brother, sister-in-law, and a former comrade, state, in essence, that the applicant was a very happy Soldier prior to his assignment at Fort Benning, Georgia.  He had received awards and performed his duties well.  The authors contend that the applicant's problems were the result of abuses received from his first sergeant at Fort Benning.  They ask that the applicant's discharge be upgraded.

8.  Under the Uniform Code of Military Justice (UCMJ), the maximum punishment allowed for violation of Article 86 for AWOL of more than 30 days is a dishonorable discharge and confinement for 1 year. 

9.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) 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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  

10.  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.

11.  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 contends, in effect, that his discharge should be upgraded because other cases similar to his were previously upgraded by the Board.  

2.  Even though cases with similar sets of circumstances are received by the Board, no two cases are absolutely identical.  Therefore, the Board considers each case on its own merits and makes its recommendation independent from what any previous Board may have decided in a similar case.   

3.  The applicant's original Board considered the facts and circumstances surrounding the applicant's separation and determined that his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.

4.  Additionally, the three letters of support submitted by the applicant were carefully considered; however, the contents of the letters did not contain any relevant new information that would warrant an upgrade of the applicant's discharge.

5.  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 the aforementioned requirement.


6.  In view of the foregoing, there is no basis for granting the applicant's request.

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 AR20070018869, dated 10 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)                                         AR20090001622



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ABCMR Record of Proceedings (cont)                                         AR20090001622



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