BOARD DATE:	 13 August 2009

		DOCKET NUMBER:  AR20090002901 


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 his previous requests for an upgrade of his undesirable discharge.

2.  The applicant states, in effect, that the facts stated on his previous request are inaccurate. 

3.  The applicant provides a self-authored letter 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 AR20080005325, dated 12 August 2008.

2.  The applicant provided a self-authored letter which was not previously reviewed by the ABCMR; therefore, it is considered a new argument and as such warrants consideration by the Board.

3.  The applicant enlisted in the Regular Army on 18 January 1968.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).

4.  A DA Form 2627-1 (Record of Proceedings Under Article 15, UCMJ) shows that, on 26 February 1968, the applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for being absent without leave (AWOL) for 1 day.  This form further shows the punishment consisted of a forfeiture of $22.00 pay for 1 month, 14 days of restriction, and extra duty for 14 days.

5.  A DA Form 20B (Insert Sheet to DA Form 20 – Record of Court-Martial Conviction) shows that, on 10 October 1968, the applicant was convicted by a special court-martial of being AWOL from 20 April to 19 September 1968.  This form also shows the sentence consisted of confinement at hard labor for 
5 months (suspended for 5 months) and a forfeiture of $73.00 pay per month for 
5 months.  This form further shows that on 14 January 1969, the applicant was convicted a second time by a special court-martial of being AWOL from 
28 October to 17 December 1968 and the punishment consisted of confinement at hard labor for 6 months and a forfeiture of $73.00 pay per month for 6 months.

6.  Item 44 (Time Lost Under Section 972, Title 10, U.S. Code and Subsequent to Normal Date ETS) of the applicant's DA Form 20 (Enlisted Qualification Record) shows he was confined for 116 days and was AWOL for a total of 359 days.  

7.  On 15 September 1969, the applicant requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial. He acknowledged in his request that he understood he might be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate; that he might be ineligible for many or all benefits administered by the Veterans Administration; that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.  He elected not to submit a statement on his own behalf.  He also acknowledged that prior to completing his request, he was afforded the opportunity to consult with appointed counsel, or military counsel of his own choice, if he was reasonably available, or civilian counsel at his own expense.  He declined the opportunity to consult with counsel.

8.  On 1 October 1969, the appropriate authority approved the applicant's request for discharge for the good of the service in lieu of court-martial under the provisions of chapter 10 of Army Regulation 635-200.  He directed the applicant be issued an undesirable discharge.  On 15 October 1969, the applicant was separated with an undesirable discharge.  He had completed a total of 4 months and 26 days of creditable active service with approximately 475 days of time lost.


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

10.  The self-authored letter provided by the applicant essentially states that the facts stated on his previous request are inaccurate and he wants his undesirable discharge upgraded to honorable.

11.  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.

12.  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.

13.  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 contentions have been carefully considered and determined to be without merit.  Although he contends the facts on the previous ABCMR proceedings are inaccurate, the evidence of record clearly shows he signed a document in which he voluntarily requested separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial.  Additionally, the stated facts in this record of proceedings are supported by the available evidence and the applicant has not provided any new evidence which would change the facts surrounding his discharge.

2.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by   court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

3.  The applicant's record of indiscipline includes punishment under the provisions of Article 15, Uniform Code of Military Justice, two court-martial convictions, and 475 days of time lost due to being AWOL and in confinement.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance for Army personnel.  Therefore, he is not entitled to either a general or an honorable discharge.

4.  Lacking evidence to the contrary, it is concluded that all requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process.  Therefore, it is concluded that the 
characterization of service and reason for the applicant's discharge were both proper and equitable.  As a result, his discharge accurately reflects his overall record of service.

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 AR20080005325, dated 12 August 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)                                         AR20090002901



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ABCMR Record of Proceedings (cont)                                         AR20090002901



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