BOARD DATE:	  28 October 2010

		DOCKET NUMBER:  AR20100012449 


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 previous request for upgrade of his discharge under other than honorable conditions to a general discharge.

2.  The applicant states his concerns with the Board's findings in the following sections of the Army Board for Correction of Military Records (ABCMR) Docket Number AR20090015039, dated 11 March 2010:

	a.  "THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE," item 3, which states, "the applicant did not provide any additional documentary evidence in support of his request."  He contends he submitted medical records as evidence.

	b.  He also challenges the findings in "CONSIDERATION OF EVIDENCE," items 6 and 7, which outline his knowledge and understanding of the administrative and legal procedures which were available to him during the discharge process.

3.  He asserts he would have requested a compassionate reassignment had he known and been given the proper guidance from his chain of command.

4.  The applicant provides copies of excerpts from Army Regulation 614-200 (Enlisted Assignments and Utilization Management), section III, paragraphs 5-7, 5-11, and 5-16 that detail compassionate actions.



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 ABCMR in Docket Number AR20090015039 on 11 March 2010.

2.  The applicant provides arguments that will be considered by the Board.

3.  His records show he enlisted in the Regular Army on 21 April 1988 at 18 years of age.  After the completion of basic combat and advanced individual training he was awarded military occupational specialty 19D (Cavalry Scout).

4.  The Board previously noted the applicant did not provide any additional documentary evidence in support of his request for upgrade of his discharge.  However, the applicant contends he submitted medical records which should have been entered as evidence.  A review of the DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 15 August 2009, shows item 9 (In support of this application, I submit as evidence the following attached documents) was left blank.

5.  A copy of a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 15 August 2009, shows the following entry in item 8 (In support of this application, the following attached documents are submitted as evidence), "a letter of explanation and documents obtained from the doctor."

6.  A thorough search of the applicant's records failed to yield the medical documents outlining his mother's condition.

7.  During its original review of the case, the Proceedings found that the applicant departed his unit in an AWOL status on 1 April 1989 and did remain so until he surrendered to civil authorities on 28 November 1989.  His commander preferred court-martial charges against him for one specification of AWOL from 1 April 1989 to 28 November 1989.

8.  The Proceedings outlined that in his request for discharge the applicant consulted with counsel and was advised of all legal matters.  The applicant contends that he was not advised of his chances for reentering the Army, nor was he advised that upon returning to his place of duty that he would be placed in custody.  Had he been properly advised of these things, his decision to request a chapter 10 discharge may have been different; however, he was not given any option.
9.  The Proceedings also noted the applicant understood that by requesting discharge he was admitting guilt to the charge of AWOL that was preferred against him.  He further acknowledged he understood that he could be deprived of many or all Army and Department of Veterans Affairs benefits.  He contends he was not given an opportunity to make a statement or he would have made one.

10.  A review of the applicant's records reveals a copy of the original request for discharge for the good of service.  This document shows the applicant's signature as well as the signature of counsel.  In item 6 of this document, the applicant initialed the block indicating he did not desire to submit any statements with his request.

11.  On 27 December 1989, the separation authority approved the applicant's request for discharge in accordance with chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for the good of the service and directed that he be reduced to the lowest enlisted grade and issued an under other than honorable conditions discharge.  On 30 January 1990, he was discharged accordingly.  His DD Form 214 shows he completed 1 year, 1 month, and 13 days of creditable active military service and he had 241 days of lost time due to AWOL.

12.  On 20 February 1998, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

13.  The applicant submitted excerpts from Army Regulation 614-200 detailing compassionate reassignment requests.  There is no evidence in the available records and the applicant has not provided any evidence which shows he requested a compassionate reassignment.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 establishes policy and prescribes procedures for separating members in lieu of trial by court-martial.  The regulation states that a Soldier who has committed an offense or offenses, the punishment for which includes a bad conduct or dishonorable discharge under the Uniform Code of Military Justice and the Manual for Courts-Martial, may submit a request for discharge in lieu of trial by court-martial.

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's request for reconsideration of his previous request for an upgrade of his discharge under other than honorable conditions to a general discharge along with the new evidence he submitted has been carefully considered.

2.  The applicant claims he would have requested a compassionate assignment if he had been properly counseled by his chain of command.  However, he chose to take matters into his own hands by going AWOL.

3.  Although the applicant contends that he was discharged without receiving the proper legal advice or without being given the option to submit a personal statement with his request for discharge under the provisions of chapter 10 of Army Regulation 635-200, his records show otherwise.  The ABCMR reviews applications properly brought before it and begins its consideration of every case with a presumption of regularity, which is a presumption that what the Army did was correct.  The burden of proving otherwise rests with the applicant.

4.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge.  After consulting with defense counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.

5.  The Army Discharge Review Board found that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant provides no evidence now to show otherwise.  Further, the applicant's discharge accurately reflects his overall record of service which included 241 days of AWOL.  In view of the foregoing, there appears to be no basis for granting the applicant's request.

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 AR20090015039, dated15 March 2010.



      ___________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)                                         AR20100012449



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ABCMR Record of Proceedings (cont)                                         AR20100012449



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