IN THE CASE OF:	  

		BOARD DATE:	        4 August 2009

		DOCKET NUMBER:  AR20090003455 


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 the Board's denial of his request to upgrade his undesirable discharge to an honorable discharge.

2.  The applicant states, in effect, that he would like his Army records to coincide with his Department of Veterans Affairs (VA) records which show he was honorably discharged.  He adds that he started to smoke heroin to deal with the anxiety and fear caused by the constant shelling of his base.  Once his commander found out about his drug use he was given menial jobs, but was returned to his normal duties on the flight line after he talked to a lawyer.  This happened three times.  He was then told it was the battalion commander's rule that any Soldier who was given nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice three times would be processed for discharge, but he could not find anything to verify this statement.

3.  The applicant concludes that he was admittedly foolish while on active duty, but he has since become a much better person.  He became a certified surgical technician in 1977, received a bachelor's degree in mathematics in 1988, and received a master’s degree in physics in 1993.  He has been teaching school since 1995.

4.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), a letter from the Community for Creative Non-Violence, and a Washington D.C. Police Department Criminal History Request.


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 AR20080009437, dated 18 September 2008.

2.  The letter from the Community for Creative Non-Violence, and the Washington D.C. Police Department Criminal History Request is new evidence which requires the Board to reconsider the applicant's request.

3.  The applicant's military records show he was inducted into the Army on 4 March 1971.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 67A (Aircraft Maintenance PH-1).  He served in the Republic of Vietnam (RVN) from 31 August 1971 through 18 January 1972.  

4.  Between 24 March 1971and 6 December 1971, the applicant accepted NJP on five occasions for failing to go at the time prescribed to his place of duty (two incidents), disobeying a lawful order, being absent without leave (AWOL), and breaking restriction. 

5.  On 9 December 1971, the applicant's commander notified the applicant of his intention to initiate discharge action against him for unfitness.  The commander stated the basis for his action was the applicant’s history of commissions of court-martial offenses which included his failure to obey a lawful order and being AWOL on 29 November, 1 December, and 6 December 1971.  The applicant was advised that he had the right to a hearing before a board of officers, to submit a written statement in his own behalf, to be represented by counsel, and that he may waive these rights in writing.  The applicant waived his rights.

6.  The applicant's commander's recommended that the applicant be discharged and the recommendation was approved by the proper authority.  Accordingly, on 8 February 1972, the applicant was discharged under the provisions of Army Regulation 635-212 and issued an Undesirable Discharge Certificate.

7.  Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability), in effect at the time of the applicant's separation from active duty, provided procedures and guidance for eliminating enlisted personnel for, in pertinent part, frequent incidents of a discreditable nature with civil or military authorities.  This Army regulation provides that Soldiers discharged for frequent incidents of a discreditable nature based on a pattern of shirking will normally be furnished an Undesirable Discharge Certificate.
8.  On 20 September 1977, the Army Discharge Review Board (ADRB) denied the applicant's request to upgrade his discharge.

9.  Army Regulation 635-200, governs the basic policies and procedures for the separation of enlisted personnel.  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.

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.

DISCUSSION AND CONCLUSIONS:

1.  While the VA, operating under its own rules, regulations and laws, may consider the applicant's service honorable for the purpose of determining eligibility for benefits administered by that Department, the applicant received an undesirable discharge which has not been upgraded.  It would be inappropriate to change a properly-issued discharge to coincide with a VA administrative decision.

2.  The applicant admits to using illegal drugs while he was on active duty, and he faults his commander for attempting to move him to duties outside of his military occupational specialty because of his drug use.  While the evidence of record does not substantiate this contention, it would be reasonable for a commander to remove a Soldier from the flight line in a combat zone if it were known the Soldier was using illegal drugs.  

3.  As stated by the applicant, there is no evidence that his battalion commander had a rule requiring that any Soldier who was given three NJPs to be processed for discharge.  However, the applicant received five NJPs, therefore; his conduct and performance of duty did not meet the standards for a general or honorable discharge.


4.  The applicant's stated post-service accomplishments are certainly noteworthy.  However, these accomplishments are not sufficiently mitigating to upgrade a discharge based on a record of repeated, serious misconduct.

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 AR AR20080009437, dated 18 September 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)                                         AR20090003455



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ABCMR Record of Proceedings (cont)                                         AR20090003455



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