BOARD DATE:	  13 August 2009

		DOCKET NUMBER:  AR20090004104 


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 earlier request for an upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge (HD).

2.  The applicant references paragraphs in the previous Army Board for Correction of Military Records (ABCMR) Record of Proceedings, dated 13 March 2008.  He points out that the Board indicated that his personnel record contained no mention of a spouse or dependents.  He argues that he was married with one dependent at the time of his discharge.  He has since divorced and has provided a copy of the divorce decree issued in March 1986.  

3.  He references paragraph 3 under Discussions and Conclusions, in which the Board indicated that his discharge accurately reflects his overall record of service.  He contends that his record of service was honorable for his first enlistment.  He was promoted to sergeant (SGT)/E-5 at an accelerated pace, which indicated his desire to succeed in his chosen military occupational specialty.  In addition, he asserts that his performance record clearly indicated military professionalism, competence, and leadership as reflected in his Enlisted Evaluation Report (EER) and letters from his squad leader and platoon leader in Germany.

4.  He references paragraph 4 under the Consideration of Evidence in which the Board indicated that there is no written record of him attempting to get his orders to Korea in March 1985 revoked or amended because of his family problems.  He

contends that he discussed his family problems with his First Sergeant, Company Commander, and Platoon Leader.  He was also granted compassionate leave during this time to return to the United States to help his wife deal with the loss of their first child.  While he was at Fort Knox, KY, he again utilized his chain of command to request revocation of orders or a compassionate reassignment.   

5.  The applicant further references paragraph 7 under the Consideration of Evidence which indicates he agreed to the request for discharge and was not coerced into accepting his discharge for the good of the service.  He asserts that he was under incredible mental and emotional duress and distress at the time he was counseled.  At that time, he just wanted his release from the service in an expeditious manner.  He further asserts that no effort was made by the Army to investigate the reasons for his actions prior to his discharge.  He would like the Board to reconsider Army Regulation 635-200, paragraph 3-7b which provides for a general, under honorable conditions discharge.  Lastly, he alleges that his UOTHC discharge was unjustifiably severe and the vast majority of his military service was satisfactory, professional, and competent.  

6.  The applicant provides a copy of his previous application; his divorce decree; his EER for the period ending December 1984; and two letters by his former Platoon Leader and Squad Leader, dated 3 March 1983, in support of his 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 AR20070016982 on 11 March 2008.

2.  The applicant provides new arguments and documents as referenced above that warrant reconsideration by the Board.  

3.  The applicant provided a copy of his divorce decree which indicates he was divorced on 6 March 1986 and there was one child born on 9 November 1984 during this marriage.  

4.  The applicant provided letters from his former Platoon Leader and Squad Leader.  These letters were addressed to the President of the Reenlistment Retention Board recommending that the applicant be allowed to reenlist.  The applicant was described as being an asset to their unit and to the U.S. Army and should be allowed to reenlist.  

5.  On 6 March 1983, the applicant was honorably discharged for the purpose of immediate reenlistment.  At the time of his discharge he had served 2 years, 10 months, and 10 days of active military service.  

6.  On 7 March 1983, the applicant reenlisted for a period of 4 years.  His highest rank/grade he attained was SGT/E-5 during the period under review.  

7.  On 11 April 1983, while assigned to a unit in Germany, the applicant accepted nonjudicial punishment for communicating a threat to his superior noncommissioned officer (NCO), for assaulting his superior NCO by pushing him with his hands, and for disobeying a lawful order by having a female in his room.

8.  The applicant provided a copy of his EER for the period covering October 1984 through December 1984 which shows his principal duty title as tank gunner.  This report shows a rating of "119" based on a maximum total of 125 points.  The rater's evaluation stated in part "SGT M___ is a young junior NCO.  His performance on the job is above average.  His appearance while in garrison is with Army standards…SGT M___ is always trying to improve himself to be an outstanding NCO…I feel that SGT M___ will be a great asset to the United States Army."

9.  On this EER, the Indorser's evaluation stated, in part, "SGT M___ is an outstanding performer in garrison.   He has shortcomings in his appearance and self discipline, although with proper guidance accomplishes his assigned missions satisfactorily.  He performs well in the field environment where he supervises the maintenance of the Platoon Sergeant's tank.  His technical expertise is above average and provides his greatest asset to the section as a maintenance supervisor.  SGT M__ is an average Sergeant with room for improvement."  

10.  On 20 March 1985, the applicant was assigned to a unit in Korea.  There is no evidence in his military record which indicates he tried to get his orders to Korea revoked or amended because of family problems.

11.  On 11 November 1985, the applicant was reported as being absent without leave (AWOL).  The applicant surrendered to civilian authorities and returned to military control on 21 December 1985.  The applicant did not indicate the reason why he went AWOL.

12.  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, 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.  An UOTHC discharge is 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.

14.  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 contention that he was married with one dependent at the time of his discharge is noted.  Although he has provided a copy his divorce decree to confirm he was married during the period under review, this issue is not sufficiently mitigating to warrant an upgrade of his discharge.

2.  The applicant's contention that his record of service was honorable for his first enlistment is correct.  However, his service records show he received one Article 15 and was charged for being AWOL for 39 days during the period under review.  

3.  The applicant contends that he discussed his family problems with his First Sergeant, Company Commander, and Platoon Leader and was granted compassionate leave during this time to return to the United States.  However, there is no evidence and he has not provided any evidence which substantiates his claims.  

4.  The applicant also contends that he was under incredible mental and emotional duress and distress at the time he was counseled and that no effort was made by the Army to investigate the reasons for his actions prior to his discharge.  Again, there is insufficient evidence on which to substantiate the applicant's claims.  

5.  In addition, the applicant contends that his UOTHC discharge was unjustifiably severe and the vast majority of his military service was satisfactory, professional, and competent.  

6.  However, the applicant’s record shows he was charged with the commission of an offense (AWOL) punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his service during the period under review.

7.  There is no evidence of record which indicates the actions taken in his case were in error or unjust, therefore, there is no basis for granting the applicant's requested relief.

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 AR20070016982, dated 11 March 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)                                         AR20090004104



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ABCMR Record of Proceedings (cont)                                         AR20090004104



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