IN THE CASE OF:	

		BOARD DATE:	  23 February 2010

		DOCKET NUMBER:  AR20090016061 


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, an upgrade of his discharge. 

2.  The applicant states that he wants acknowledgement of his first term of service.  He completed his first term and should be eligible for benefits since his first term has no bearing on his second term of service.  He adds that he agreed to take the chapter 10 without knowing the impact it would have on his first enlistment and overall service and benefits.  He was an airborne Soldier and deserves some benefits for all the jumps he made over several years.  Everything he did during his service was what the Army molded him to do and he felt a part of something.  He made a huge mistake when he left and knows that he will have to live with this mistake; but, he does not want to go to the grave with a character of service as other than honorable.  He deserves better and feels he is being denied benefits for reasons that really do not matter.   

3.  The applicant provides two undated self-authored letters in support of his request.  

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army for a period of 3 years on 7 January 1992.  He completed basic combat and advanced individual training and was awarded military occupational specialty 94B (Food Service Specialist).  His records also show he executed a 5-year reenlistment on 18 May 1994.  The highest rank/grade the applicant attained during his military service was specialist four/E-4.
2.  The applicant's records further show he was awarded the Good Conduct Medal, the National Defense Service Medal, the Army Service Ribbon, the Sharpshooter Marksmanship Qualification Badge with Grenade Bar, the Marksman Marksmanship Qualification Badge with Rifle Bar, and the Parachutist Badge.  

3.  On 14 February 1995, the applicant departed his Fort Bragg, NC, unit in an absent without leave (AWOL) status and was subsequently dropped from the Army rolls on 14 March 1995.  He was apprehended by civilian authorities in Dillon, SC, and was returned to military control on 28 December 1995. 

4.  On 10 January 1996, court-martial charges were preferred against the applicant for one specification of being AWOL during the period on or about 14 February 1995 through on or about 28 December 1995. 

5.  On 10 January 1996, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations) for the good of the service in lieu of trial by court-martial.

6.  In his request for discharge, the applicant indicated that he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person.  He also indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions.  He further acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He elected not to submit a statement in his own behalf and indicated that "under no circumstances do I desire further rehabilitation, for I have no desire to perform further military service." 

7.  On 23 January 1996, the applicant's immediate and intermediate commanders recommended approval of the applicant's separation with the issuance of an under other than honorable conditions discharge.  

8.  On 2 February 1996, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed that he receive an under other than honorable conditions discharge and that he be reduced to the lowest enlisted grade.  On 12 March 1996, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged for the good of the service in lieu of a court-martial with a character of service of under other than honorable conditions.  This form further confirms he completed a total of 3 years, 3 months, and 22 days of creditable active military service and had 317 days of lost time.

9.  On 21 August 2009, the Army Discharge Review Board (ADRB) denied the applicant's petition for an upgrade of his discharge.

10.  The applicant submitted two undated self-authored letters as follows:

	a.  In his first letter, the applicant states that most people would not understand his situation.  He has been tossing and turning since he made the decision to leave the military and had deeply regretted the decision of not knowing where the military would have led his life.  He is very sorry for disappointing himself, his mother, and his family, and knows that he has to live with his decision for the rest of his life.  However, he wants the Board members to know that he performed several jumps during his service and continues to suffer from back and knee pain as a result of those jumps.  He should not be penalized and denied benefits since he honorably completed his first period of enlistment.  

	b.  In his second letter, the applicant requests this Board to send him a copy of all the benefits he may be eligible for.  He also wants copies of "payments to the MGIB from his paycheck."  

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 3-7a, 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.

13.  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.

14.  Title 38 of the Code of Federal Regulations, chapter 1, section 3.13(c), provides that, "Despite the fact that no unconditional discharge may have been issued, a person shall be considered to have been unconditionally discharged or released from active military …service when the following conditions are met:…(2) The person was not discharged or released from such service at the time of completing that period of obligation due to an intervening enlistment or reenlistment; and (3) the person would have been eligible for a discharge or release under conditions other than dishonorable at that time except for the intervening enlistment or reenlistment."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded.

2.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.  The Army no longer publishes a separate DD Form 214 for each period of enlistment.  The applicant's first period of service is documented on his DD Form 214 as prior active service.

3.  The applicant's record shows he was charged with the commission of an offense 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 overall record of service.

4.  There is no evidence in the available records, nor did the applicant provide documentation, to warrant an upgrade of his discharge.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general or an honorable discharge. 

5.  With respect to education and/or other benefits, the ABCMR corrects records based on error or injustice and, in doing so it does not correct records solely for the purpose of establishing eligibility for programs or benefits.  Since the applicant would have been eligible for an honorable discharge on 18 May 1994, it appears the Department of Veterans Affairs (VA) is statutorily required to treat him for any conditions that arose during his first period of service.  Eligibility for veterans' benefits does not fall within the purview of the Army, however.  He should contact a local office of the VA to inform them, if necessary, of the applicable statute and request further assistance.

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 for correction of the records of the individual concerned.



      ____________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)                                         AR20090016061



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ABCMR Record of Proceedings (cont)                                         AR20090016061



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