IN THE CASE OF:	  

		BOARD DATE:	  14 October 2009

		DOCKET NUMBER:  AR20090004865 


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 an earlier request that his undesirable discharge (UD) be upgraded to an honorable discharge (HD) and that his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected to document his overseas service in Fulda, Germany.

2.  The applicant states, in effect, that he is a loyal American who served in the Armed Forces with the intention of serving our great country honorably.  Unfortunately, situations and circumstances occurred in his life, some under his control and some not, which prevented him from doing what he had initially intended to do.  He states that in his first application to the Board, he provided superficial reasons as to why he made such hasty and juvenile decision based solely on emotions that resulted from his cousin, who was like a brother to him, being killed in action.  He states that when his cousin died all of their plans died with him and the political climate of the times in some ways influenced and exacerbated his bad choices.

3.  The applicant also claims the reason for his discharge was the result of two periods of absence without leave (AWOL) which were somewhat due to errors on his part, but errors on the Army's part also contributed.  He claims he was charged with being AWOL on 10 March 1971 and accepted the punishment although he had been in a car accident that resulted in his being unconscious for the first 3 days, which further resulted in his being unable to inform his superiors of his whereabouts in a timely fashion.  He states he accepted responsibility and punishment for the only actual AWOL he had on 26 March 1971.
4.  The applicant indicates the Board also cited records of other incidents of AWOL; however, this information is incorrect.  He states that by the Board's own admission, they have no record of any disciplinary action because those incidents never occurred.  The Board also admits that his discharge packet is missing from his official military personnel file (OMPF) and he claims it is unfair to hold him accountable for other incidents.  He further states he is in a distressed state of mind due to being sidetracked for several years after his discharge due to personal problems as a civilian.  He is again asking the Board to review his case to determine if there is any possible way to upgrade his UD to an HD, which would change his life in many ways and make his final years more comfortable and joyful.

5.  The applicant provides a self-authored statement and four third-party statements 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 AR20080010163 on 28 August 2008.

2.  During its original review of the applicant's case, the Board concluded the applicant's discharge processing was accomplished in accordance with the applicable regulations and that his discharge was both proper and equitable.

3.  The applicant's record shows he enlisted in the Regular Army and entered active duty on 30 March 1970.  It also shows he was trained in and awarded military occupational specialty 11D (Armor Reconnaissance Specialist) and that private first class/E-3 was the highest rank/grade he attained while serving on active duty.

4.  A reconstructed DA Form 20 (Enlisted Qualification Record) pertaining to the applicant on file is void of any entries in item 31 (Foreign Service) that documents any specific periods of overseas service.  Item 38 (Record of Assignments) contains no entries listing assignments overseas.  Item 44 (Time Lost) shows he accrued 48 days of lost time during four separate periods of AWOL between 10 February 1971 and 28 May 1971 [actual calculation totals 47 days].

5.  The applicant's OMPF contains a DD Form 214 which covers a period of active duty service between 30 March 1970 and 4 December 1970 and contains the entry "Fulda, Germany APO NY  09146" in item 11b (Station or Installation at Which Effected).  Item 12 (Last Duty Assignment and Major Command) shows Troop B, 14th Armored Cavalry Regiment, United States Army Europe (USAREUR).  Item 22c (Foreign Service) contains entries indicating he completed 3 months and 11 days of overseas service during the period covered by the DD Form 214 and that his last overseas service was performed in USAREUR.

6.  On 10 March 1971, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from on or about 10 February 1971 through on or about 3 March 1971.  The punishment imposed was a forfeiture of $65.00 per month for 2 months and a reduction to private/E-1.

7.  On 25 March 1971, a summary court-martial found the applicant guilty of violating Article 86 of the UCMJ by being AWOL from on or about 12 March 1971 through on or about 16 March 1971.  The resultant sentence was a forfeiture of $30.00.

8.  The applicant's OMPF contains a DD Form 261 (Report of Investigation Line of Duty and Misconduct Status), dated 3 August 1971.  This document shows the applicant was involved in an automobile accident on 29 May 1971 and suffered multiple facial lacerations, a swollen right knee, and a fracture of his right patella. 
It also shows that at the time of his accident he was not present for duty and was AWOL from his unit.  It further shows that his injuries were found to be "not in the line of duty-not due to own misconduct."

9.  The applicant’s record is void of a separation packet containing the specific facts and circumstances surrounding his separation processing.  However, the record does include a DD Form 214 that shows he was separated under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations), for the good of the service and that he received a UD on 16 July 1971.  This document also confirms he completed a total of 1 year and 2 months of creditable active military service and that he accrued 47 days of time lost due to AWOL.  The applicant authenticated this document with his signature on the date of separation.

10.  The applicant provides two third-party statements from the President of the Canyon Country Ministry and a pastor who attest to the applicant's completion of the Christian 12-Step [Rehabilitation] Program.  He also provides two third-party statements from friends who both attest to his high moral character.

11.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

12.  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.  The separation authority can authorize a GD or an HD if warranted by the member's overall record of service; however, a discharge under other than honorable conditions is normally considered appropriate for members separated under these provisions.  At the time of the applicant’s discharge, the regulation provided for the issuance of a UD.

13.  Army Regulation 635-200, paragraph 3-7a, provides that an HD 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

14.  Paragraph 3-7b of the same regulation provides that a general discharge (GD) 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 HD.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

15.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his UD be upgraded to an HD was carefully considered.  However, there is insufficient evidence to support granting the requested relief.


2.  It is acknowledged that evidence of record verifies he was in a car accident in May 1971.  However, he had been AWOL when he was in the accident.

3.  The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing.  However, it does include a properly-constituted DD Form 214 that identifies the reason and characterization of his discharge and that confirms he accrued 47 days of lost time.  The applicant authenticated this document with his signature on the date of his discharge and the DD Form 214 carries with it a presumption of government regularity in the discharge process.

4.  The applicant's DD Form 214 confirms he was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial.  In connection with such a discharge, he was charged with the commission of an offense punishable with a punitive discharge under the UCMJ.  Procedurally, he was required to consult with defense counsel and to voluntarily request separation from the Army in lieu of trial by court-martial.  Absent 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.

5.  The applicant's successful rehabilitation and post-service conduct as attested to in the third-party statements he provides are noteworthy.  However, these factors alone are not sufficiently mitigating to support granting the requested relief given the applicant's undistinguished record of service.  His record documents no acts of valor or significant achievement; however, it does reveal a significant disciplinary history that includes his acceptance of NJP, a summary court-martial, and at least two periods of AWOL.  As a result, his overall record did not support the issuance of a GD or an HD by the separation authority at the time of his discharge nor does it support an upgrade at this late date.

6.  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 this requirement related to his discharge.  Therefore, there is an insufficient evidentiary basis to support granting the requested relief or amending the original Board decision on this matter.

7.  The applicant's request that his DD Form 214 be corrected to reflect his overseas service in Fulda, Germany, was also carefully considered.  However, a DD Form 214 on file that was issued to the applicant for the period 30 March 1970 through 4 December 1970 already reflects he completed 3 months and 11 days of overseas service and the last major command he served in was USAREUR which includes Germany.

8.  Further, the 4 December 1970 DD Form 214 shows he was serving in Fulda, Germany, when the DD Form 214 was issued.  A copy of this DD Form 214 is included for the applicant's information and use.  The fact he served in Fulda, Germany, is already documented in his record as indicated and absent any additional record entries or documents on file that identify/confirm additional overseas service, there is an insufficient evidentiary basis to support documenting further overseas service on the 4 December 1970 or his final 16 July 1971 DD Form 214.

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 AR20080010163, dated 28 August 2008, pertaining to his discharge or to grant the relief requested regarding overseas service.



      ____________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)                                         AR20090004865



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ABCMR Record of Proceedings (cont)                                         AR20090004865



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