BOARD DATE:	  4 August 2009

		DOCKET NUMBER:  AR20090005853 


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 undesirable discharge to a general discharge.

2.  The applicant states that he would like to be respected as a veteran who served on active duty during a period of war and that, in effect, his discharge should be upgraded.  In a self-authored statement, the applicant states that the fact that his separation packet is missing from his records speaks in his favor and that although he was in an absent without leave (AWOL) status, he did not have 180 consecutive days of AWOL.

3.  The applicant provides a self-authored statement, dated 1 March 2009, in support of his 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 AR20070017981 on 27 March 2008.

2.  The applicant submitted a self-authored statement in which he presents a new argument which was not previously reviewed by the ABCMR; therefore, it is considered new evidence and as such warrants consideration by the Board.  In his argument, the applicant states that the fact that his separation packet is missing from his records speaks in his favor and that although he was in an absent without leave (AWOL) status, he did not have 180 consecutive (emphasis added) days of AWOL.  He adds that he was struggling with alcohol addiction at the time in order to deal with his post-traumatic stress disorder (PTSD) which was caused by his exposure to combat.  He goes on to describe several symptoms associated with his PTSD.  He further adds that he would like this Board to look into his sanity at the time.

3.  The applicant's record shows he enlisted in the Regular Army for a period of 3 years on 3 October 1967.  He completed basic combat and advanced individual training and was awarded military occupational specialty 36K (Wireman).  The highest rank/grade he attained during his military service was private first class/E-3.

4.  The applicant's record further shows he served in the Republic of Vietnam from on or about 24 July 1968 to on or about 15 July 1969.  His awards and decorations include the National Defense Service Medal, the Vietnam Service Medal, and the Vietnam Campaign Medal.

5.  On 26 March 1970, the applicant pleaded guilty at a summary court-martial to two specifications of being AWOL during the periods on or about 5 January 1970 through on or about 12 March 1970 and on or about 18 March 1970 through on or about 21 March 1970.  The Court sentenced him to confinement at hard labor for 24 days and a forfeiture of $109.00 pay per month for 1 month.  The sentence was adjudged on 26 March 1970.

6.  On 8 April 1970, the convening authority approved the sentence, but suspended the 24-day confinement for a period of 48 days.

7.  On 21 May 1970, the applicant again pleaded guilty at a summary court-martial to two specifications of being AWOL during the periods on or about 9 April 1970 through on or about 10 April 1970 and on or about 24 April 1970 through on or about 29 April 1970.  The Court sentenced him to performance of hard labor without confinement for 45 days and a forfeiture of $55.00 pay for 1 month.  The sentence was adjudged on 21 May 19070 and was approved on 1 June 1970.

8.  On 16 July 1970, the applicant pleaded guilty at a special court-martial to two specifications of being AWOL during the periods on or about 30 April 1970 through on or about 4 May 1970 and on or about 5 May 1970 through on or about 2 June 1970.  The Court sentenced him to reduction to private/E-2.  The sentence was adjudged on 16 July 1970 and was approved on 7 August 1970.

9.  The applicant's records reveal he was placed in pretrial confinement during the period from on or about 13 August 1970 through on or about 10 September 1970.

10.  The specific facts and circumstances surrounding the applicant's discharge are not available for review with this case.  However, his record contains a properly constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows he was administratively discharged on 1 October 1970 under the provisions of chapter 10 of Army Regulation 600-200 (Personnel Separations) in lieu of a court-martial with a character of service as under other than honorable conditions and that he was issued an Undesirable Discharge Certificate.  This form further shows he completed 2 years, 5 months, and 19 days of creditable active military service and had 190 days of lost time.

11.  There is no indication in the applicant's records that he suffered from an alcohol problem, PTSD (or similar mental disorder), or any other medical condition.

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

13.  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, an under other than honorable conditions discharge is normally considered appropriate.

14.  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.

15.  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 contends that his earlier request for an upgrade of his undesirable discharge to a general discharge should be reconsidered. 

2.  The applicant’s record is void of the specific facts and circumstances that led to his discharge.  However, his record contains a properly constituted DD Form 214 that shows he was discharged on 1 October 1970 under the provisions of chapter 10 of Army Regulation 635-200 for the convenience of the government in lieu of a court-martial.

3.  The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200, required the applicant to have voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant has provided no information that would indicate the contrary.  Further, the applicant’s discharge accurately reflects his overall record of service.

4.  The applicant's argument that he did not have 180 consecutive days of AWOL is noted; however, it is immaterial to the fact that the issuance of a discharge under the provisions of chapter 10 required him to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  Furthermore, there is no evidence that the applicant encountered alcohol problems and/or suffered from PTSD during his military service or that he addressed such issues with his chain of command and/or support channels.  Additionally, there is no evidence that his extensive history of AWOL was caused by alcohol or PTSD.

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 AR20070017981, 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)                                         AR20090005853



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ABCMR Record of Proceedings (cont)                                         AR20090005853



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