IN THE CASE OF:	  

		BOARD DATE:	  21 September 2011

		DOCKET NUMBER:  AR20110004485 


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.

2.  The applicant states:

* What happened to him was not justified
* Despite tough, challenging, and physically-demanding basic combat training, he was able to graduate
* Four weeks into basic training, he went home on a pass; shortly after his arrival, his brother was killed in mysterious circumstances
* He returned from pass a few minutes late and he was punished for it
* Shortly after arriving at his first duty station, he received a message that his aunt was killed but he was not allowed to go to the funeral
* He was shipped to Vietnam; during the flight, he had a nervous breakdown and when they landed, they took him to a hospital
* He went to Germany, Fort Belvoir, VA, Korea, and Fort Lewis, WA
* He had more nervous breakdowns and when he got out of the hospital, his wife and son were gone
* He went on a "28-day drink" but he turned himself in to the police and ended up in the stockade for 30 to 45 days
* When he was released back to his unit, his first sergeant told him he did not want people like him in the unit; so, he resigned
* He does not believe this is justice

3.  The applicant provides letter of denial from the Department of Veterans Affairs (VA). 

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 AC90-08023, on 9 January 1991.

2.  The applicant submitted a new argument and a letter from the VA.  Although the applicant did not meet the two-tiered standard for reconsideration in that his request is more than 1 year after the Board's original decision and the applicant failed to provide any new substantial evidence, the new argument is considered new evidence and will be considered by the Board as an exception to policy.

3.  The applicant enlisted in the Regular Army (RA) on 14 February 1969.  He completed basic combat and advanced individual training and he was awarded military educational specialty 62B (Crawler Operator/Engineer Equipment Repairman).  

4.  On 30 April 1969, while in training at Fort Knox, KY, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 28 to 29 April 1969.

5.  He was honorably discharged on 15 July 1970 for the purpose of immediate reenlistment.  He executed a 6-year reenlistment in the RA on 16 July 1970.

6.  On 7 April 1971, at Fort Knox, KY, he was convicted by a special court-martial of two specifications of being AWOL from 31 August to 30 September 1970 and 8 November 1970 to 18 February 1971.  The Court sentenced him to confinement at hard labor for 3 months and a forfeiture of pay.  The convening authority approved his sentence but suspended the confinement for 3 months.

7.  On 20 April 1971, at Fort Knox, KY, he accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL from 12 to 18 April 1971.

8.  On 22 April 1971, the adjudged sentence of confinement for 3 months, suspended for 3 months, was vacated and ordered executed.

9.  On 3 November 1971, at Fort Belvoir, VA, he accepted NJP under the provisions of Article 15 of the UCMJ for twice failing to go at the time prescribed to his appointed place of duty.

10.  On 6 March 1972, at Fort Belvoir, VA, he accepted NJP under the provisions of Article 15 of the UCMJ for disobeying a lawful order and twice failing to go at the time prescribed to his appointed place of duty.

11.  On 10 July 1975, he departed his Fort Lewis, WA, unit in an AWOL status and on the same date, he was dropped from the rolls as a deserter.  He was apprehended by military authorities on 31 July 1975.

12.  On 6 August 1975, his command preferred court-martial charges against him for one specification of AWOL from 10 to 31 July 1975.

13.  On 6 August 1975, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the 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 voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

14.  In his request for discharge he indicated he was making the request of his own free will and he had not been subjected to any coercion by anyone.  He also acknowledged he understood that if his discharge request were approved, he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He further understood that if such discharge were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

15.  In connection with his request, he submitted a statement wherein he stated that he joined the Army to help his family.  Shortly after his enlistment, his brother was burned to death.  His father was still not working; so, he (the applicant) went AWOL.  About a year later, while he (the applicant) was in confinement, his father was shot and killed.  He adds that he was shipped to Vietnam but he had a nervous breakdown and was returned to Washington DC where he received NJP for AWOL and disobeying an order.  He adds that he learned the only way to get out of the Army was to go AWOL.  He believed the Army destroyed his life and wanted to get out of the Army.

16.  On 14 and 20 August 1975, his immediate, intermediate, and senior commanders recommended approval of the applicant's discharge with the issuance of an Undesirable Discharge Certificate.  His commanders commented that the applicant:

* failed to demonstrate an effective interest in his duties
* was counseled frequently on his job performance
* was given an opportunity to be a squad leader but he approached his duties in an irresponsible manner and shirked his responsibilities
* was reassigned to another section to rehabilitate him
* was referred to the alcohol rehabilitation program
* accrued a large financial debt and had a bar to reenlistment placed again him
* despite all efforts to help, his previous substandard performance persisted
* displayed little or no remorse for his actions and no determination to avoid any discreditable incidents

17.  On 4 September 1975, the separation authority (a major general) approved the applicant's request for discharge in accordance with chapter 10 of Army Regulation 635-200, for the good of the service - in lieu of trial by court-martial, and directed the issuance of an Undesirable Discharge Certificate and reduction to private/E-1.

18.  He was accordingly discharged on 26 September 1975.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service -in lieu of trial by court-martial with a character of service of under other than honorable conditions and issuance of an Undesirable Discharge Certificate. This form confirms he completed 6 years, 6 months, and 23 days of total active service with 21 days of time lost (his last AWOL).

19.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that Board's 15-year statute of limitations.

20.  On 9 January 1991, the Army Board for Correction of Military Records denied his petition for an upgrade because he had not submitted his application within the allotted time (3 years after his discharge in 1975).

21.  He submitted letter from the VA denying him VA benefits for a portion of his military service.
22.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service.

23.  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.

24.  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.  

DISCUSSION AND CONCLUSIONS:

1.  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 Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  He 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 his rights were fully protected throughout the separation process.  His discharge accurately reflects his overall record of service.

2.  The applicant's family circumstances at the time, including the tragic death of his immediate family members are noted.  However, his military career was marred with misconduct from beginning to end and included multiple instances of NJP, multiple instances of AWOL, one court-martial, a bar to reenlistment, indebtedness, alcohol rehabilitation efforts, substandard performance, indifference to the Army, and frequent counseling.

3.  Based on his overall record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is entitled to neither an honorable nor a general discharge.

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 AC90-08023, dated 9 January 1991.



      _______ _   __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)                                         AR20110004485



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ABCMR Record of Proceedings (cont)                                         AR20110004485



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