IN THE CASE OF:	

		BOARD DATE:	  9 March 2010

		DOCKET NUMBER:  AR20090016690 


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 an earlier request that his undesirable discharge be upgraded to honorable.  In the alternative, he requests a general discharge, which is a new issue.

2.  The applicant states, in effect, that he was absent without leave (AWOL) for only 2 weeks.  He contends that he was given permission by the duty officer and company to go on leave and that he was to be told when to return but no one ever called.  After returning to Fort Hood he was given the option to stay in the Army but he just wanted to get out at that time.

3.  The applicant provides five character reference letters in support of his request for reconsideration.

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 AC93-09464 on 12 January 1994.

2.  The applicant provides five character reference letters from friends and his pastor.  His friends attest that he is kind, courteous, and dependable.  One friend indicates the applicant has had a stroke and he has several other medical problems.  His pastor attests that he has been a member of the church since 1997, he is a member in good standing, and he has overcome tremendous odds in life to become a true Christian gentleman.

3.  The applicant's character reference letters are new evidence which will be considered by the Board.

4.  The applicant enlisted in the Regular Army on 29 December 1967 for a period of 3 years.  He served as a field wireman in Vietnam from 24 May 1968 to 23 April 1969.  On 25 August 1970, he was honorably discharged for immediate reenlistment.  On 26 August 1970, he reenlisted for a period of 6 years.

5.  On 18 November 1970, nonjudicial punishment was imposed against the applicant for negligently failing to secure the weapons rack keys and inspect the security of the weapons, thereby permitting a .45 caliber weapon to be removed without authority from his area of responsibility, and failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a reduction to E-4 (suspended), a forfeiture of pay, and extra duty.

6.  On 2 April 1971, nonjudicial punishment was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a forfeiture of pay.

7.  The applicant was AWOL on 27 September 1971 and returned to military control on 30 May 1974.  On 21 June 1974, charges were preferred against the applicant for the AWOL period.  Trial by special court-martial was recommended.

8.  On 21 June 1974, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He indicated in his request that he understood he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration, and that he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged that he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected not to submit a statement in his own behalf.

9.  On 3 July 1974, the separation authority approved the applicant's request for discharge and directed that he be furnished an undesirable discharge.

10.  The applicant was separated with an undesirable discharge on 7 August 1974 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He had served a total of 3 years, 11 months, and 7 days of creditable active service with 976 days of lost time.

11.  On 2 June 1982, the Army Discharge Review Board denied the applicant's request for a discharge upgrade.

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 submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges have been preferred.  At that time an undesirable discharge was normally considered appropriate.

13.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

14.  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.  Although the applicant contends that he was AWOL for only 2 weeks, the evidence of record shows he was AWOL from 27 September 1971 to 30 May 1974 (976 days).

2.  The character reference letters submitted on behalf of the applicant fail to show that his discharge was unjust and should be upgraded.

3.  The applicant's record of service during his last enlistment included two nonjudicial punishments and 976 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general or an honorable discharge.

4.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

5.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ____X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 AC93-09464, dated 12 January 1994.

2.  With regard to the applicant's request for a general discharge, the Board further determined that 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)                                         AR20090016690





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ABCMR Record of Proceedings (cont)                                         AR20090016690



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