IN THE CASE OF:	  

		BOARD DATE:	         6 August 2009

		DOCKET NUMBER:  AR20090004487 


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 for upgrade of his under other than honorable conditions discharge to a general, under honorable conditions discharge.

2.  The applicant states his first term of service was characterized as honorable.  He states he performed his duties in an outstanding and satisfactory manner and showed improvement in his abilities from enlistment to discharge.  He states he went absent without leave (AWOL) because he felt his family needed his support.  He states he was told he was being returned to Germany for an additional tour and he knew he would not be able to help his family if he was out of the country.  He states he talked with his commander but he did not seem to understand the need and the obligation he felt for his family.  He states he now realizes he made a bad decision that he can only blame on his immaturity and the rash thinking of youth.

3.  The applicant provides, in support of his application, copies of five pages from his Military Personnel Records Jacket (MPRJ); a DA Form 2166-4 (Enlisted Efficiency Report); a DA Form 2166-5 (Enlisted Evaluation Report); an undated and unsigned document entitled "Church Information"; two character reference letters; and a letter from his employer.

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 AR20070018857, on 27 March 2008.

2.  The applicant enlisted in the Regular Army (RA) at the age of 24 on 28 April 1972 and served 2 years, 2 months, and 12 days honorable active service.  He reenlisted on 10 July 1974.

3.  On 7 January 1977, the applicant was convicted by a general court-martial for being AWOL during the period 18 June 1976 to 3 August 1976.

4.  On 25 May 1977, court-martial charges were preferred against the applicant for being AWOL during the period 5 April 1977 to 2 May 1977.  Additional court-martial charges were preferred on 26 May 1977, for two specifications of failure to go at the time prescribed to his appointed place of duty.

5.  On 27 May 1977, after consulting with legal counsel, the applicant voluntarily requested discharge under the provisions of chapter 10 of Army Regulation
635-200 (Personnel Separations – Enlisted Personnel) for the good of the service.  He was advised that by submitting this request for discharge he acknowledged that he understood the elements of the offense(s) charged and was guilty of the charge(s) against him or of (a) lesser included offense(s) therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.  He also stated that under no circumstances did he desire further rehabilitation for he had no desire to perform further military service.  The applicant was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and Veterans Administration (VA) benefits.  He elected not to submit a statement in his own behalf.

6.  On 13 June 1977, the appropriate authority approved the applicant’s request and directed he receive an under other than honorable conditions discharge.  On 27 July 1977, the applicant was discharged, in pay grade E-1, under the provisions of chapter 10 of Army Regulation 635-200 for the good of the service with an under other than honorable conditions discharge.  He had completed a total of 4 years, 5 months, and 20 days of creditable active service and he had 283 days of lost time due to AWOL and confinement.

7.  The DA Form 2166-4 submitted by the applicant was for the period September 1973 to August 1974.  This report showed the applicant's efficiency was outstanding and he was recommended for promotion ahead of his peers.

8.  The DA Form 2166-5 submitted by the applicant was for the period October 1974 to February 1976.  This report showed the applicant was rated as exceeding or meeting duty requirements in all of the duty performance traits.  He was also rated as exceeding or meeting duty requirements in demonstrating overall performance of assigned duties.  He was recommended for promotion with peers.  The endorser to the report noted the applicant needed "to seek self- improvement in conduct and efficiency to better himself in the performance of his duties and advancement potential."

9.  One character reference is from an individual whom the applicant raised and has known the applicant for more than 30 years.  He states the applicant has always been a good-hearted person who taught him to do the right things in life and to always believe in himself.  He states the applicant deserves a second chance.

10.  The other character reference is from the applicant's son's best friend.  He states that when he was young it was the applicant who helped him with his bikes, BB guns, and other toys that he and the applicant's son had.  He states the applicant is one of those older guys that one can go to and talk about things and get answers that are real.  He states he looks up to him because he has always been the type of person that worked for everything that he has and he was always there for his family and friends.

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, 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.

12.  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 performance evaluations submitted by the applicant show he performed his duties in an outstanding manner.  However, the periods covered by the reports are prior to his first period of AWOL and his conviction by a general court-martial for being AWOL.

2.  The applicant contends he made a bad decision based on his immaturity and rash thinking of youth.  However, he was 24 years of age when he enlisted in the Army and he was 29 years of age when he went AWOL the first time.  Therefore, the age of the applicant cannot be used as a justifiable reason to change a properly-issued discharge.

3.  The applicant was 29 years of age and had over 4 years of active service in the Army at the time he went AWOL the first time.  Therefore, he was well aware of the consequences of his actions.  

4.  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.  He admitted his guilt, and acknowledged that he could receive an under other than honorable conditions discharge.  There is no indication that the request was made under coercion or duress.  

5.  The applicant's post-service achievements and conduct are noted.  However, good post-service conduct alone is not sufficient for upgrading a properly-issued discharge and the ABCMR does not upgrade discharges based solely on the passage of time.

6.  The applicant’s record of service shows he had 283 days of lost time.  He also had one conviction by a general court-martial.  Therefore, the applicant's military record during his second enlistment is unsatisfactory and does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to a general, under honorable conditions 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 AR20070018857, dated 27 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)                                         AR20090004487



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ABCMR Record of Proceedings (cont)                                         AR20090004487



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