BOARD DATE:	  18 August 2009

		DOCKET NUMBER:  AR20090006108 


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 a general discharge.

2.  The applicant alleges that he had a motorcycle accident while on active duty and he was not absent without leave (AWOL).  

3.  The applicant provides a letter, dated 9 April 2008, from the Department of Veterans Affairs (VA); his DD Form 214 (Report of Separation from Active Duty); and a personal statement, dated 26 January 2009, 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 AR20070012238, dated 25 January 2008.

2.  The applicant has provided new arguments that will be considered by the Board.

3.  The applicant provided a letter, dated 9 April 2008, from the VA, Los Angeles, CA which informed him that he may be eligible for treatment at a VA hospital for any condition determined to be related to his military service.  He was advised to apply for treatment at the nearest VA Medical Center or Outpatient Treatment Clinic.  

4.  The applicant provided a self-authored statement in support of his claim.  He argued that what happened then [while on active duty] was still the same injustice now.  The situations prior the dates he was reported AWOL included an accident while he was on active duty.  He was placed in the emergency room at the Irwin Army Hospital with much more damage than recorded on paperwork and/or reports.  His DD Form 214 shows his AWOL dates from 3 October 1977 to 10 October 1977 and 28 February 1978 to 8 May 1978.  After his accident, he was taken home to Manhattan, KS where several people looked after him.  As a result of his motorcycle accident, he was unable to report for duty.  He was born in Seoul, Korea, grew up in the Vietnam era, and served during the end of this era, which was not without challenges.  He claimed that his service record will show he had a good clean record and excelled in rank from E-1 to E-4 prior to the alleged AWOL.  The applicant stated he did well and was proud of it, but his first sergeant did not like him and did not hide his prejudice.  Prior to this incident he had no problems.  Today, he has no regrets in life except for this incident and the injustice he wishes to correct.    

5.  The applicant enlisted on 2 April 1976 for a period of 3 years.  He attained the rank of specialist four, E-4 on 1 August 1977.

6.  Records show the applicant went AWOL on 3 October 1977 and returned to military control on 10 October 1977.  

7.  On 23 February 1978, the applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice for failing to go to his appointed place of duty.  His punishment consisted of a reduction to private first class, a forfeiture of $100.00 pay for 1 month, and extra duty for 14 days.

8.  He went AWOL again on 28 February 1978 and returned to military control on 9 May 1978.  

9.  On 16 May 1978, charges were preferred against the applicant for the AWOL period from 28 February 1978 to 9 May 1978.  

10.  On 11 May 1978, the applicant underwent a separation physical examination and was found qualified for separation with a physical profile of 111111.  Item 
18 (Head, Face, Neck, and Scalp) on his Standard Form 88 (Report of Medical Examination) was rated as normal.  The Standard Form 88 also shows the applicant reported that he was in good health and he had been treated at Irwin Army Hospital for lacerations on his right arm, legs, and chin.
11.  The applicant was discharged on 1 June 1978 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of 
court-martial with issuance of a UOTHC discharge.  He had served 1 year, 11 months, and 13 days of active service with 78 days of lost time due to being AWOL.  

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 applicant contends he had a motorcycle accident while he was on active duty and that he was not AWOL.  However, his service record shows he was AWOL on two separate occasions for a total of 78 days.  Although he indicated on his separation physical that he was treated at Irwin Army Hospital for lacerations (right arm, legs, and chin), there is no evidence to confirm he was unable to report for duty as a result of a motorcycle accident.  

2.  The applicant contends that his service record will show he had a good clean record and excelled in rank from E-1 to E-4 prior to the alleged AWOL.  However, his service record shows he received nonjudicial punishment prior to his second period of AWOL and was reduced to private first class.  

3.  The applicant also contends that his first sergeant did not like him and did not hide his prejudice.  However, there is no evidence to demonstrate that the applicant was the victim of racial discrimination.

4.  The applicant's service does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His lost time also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or fully honorable discharge.

5.  The applicant's letter from the VA was considered.  However, this document is not sufficiently mitigating to warrant relief in this case.  

6.  The applicant has provided no evidence other than his self-authored statement that shows the circumstances regarding his motorcycle accident was the reason he committed the offense which led to his discharge.  Therefore, he has failed to show through the evidence submitted with his application or the evidence of record that the actions taken in his case were in error or unjust.

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 AR20070012238, dated 25 January 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)                                         AR20090006108



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090006108



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1