BOARD DATE:	  8 March 2011

		DOCKET NUMBER:  AR20100019254 


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

2.  He states why would the recruiter document his promise if he had no authority to make such a promise as stated on page 1 of his previous Record of Proceedings?  He turned himself in at Fort Devens, MA and he was bused to Fort Dix, NJ, not the other way around.  A one-star general was very impressed with his outstanding performance and offered to let him remain in the Army.  He was never interviewed by a counselor, so in effect, that statement on page 3 of his Record of Proceedings is untrue.  If he had one or more counseling sessions he believes he would have remained in the Army, possibly for life.  He is very proud of his accomplishments in boot camp and in advanced individual training (AIT).  He is not proud of going absent without leave (AWOL), but he was given no choice at a young impulsive age.  It is his belief the Army is at fault for his very poor decision to go AWOL.  Therefore, in sharing the blame, the Board should reconsider his appeal/request for an upgrade of his discharge to general, under honorable conditions.

3.  He provides:

* his DA Form 2-1 (Personnel Qualification Record - Part II)
* a Certificate of Achievement and a Superior Performance Certificate
* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Army Board for Correction of Military Records (ABCMR) Record of Proceedings, dated 5 November 2009
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 AR20090009971 on 5 November 2009.

2.  The applicant's contentions are new arguments that warrant consideration by the Board.

3.  His military records show he enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 28 March 1980.  He was discharged from the USAR DEP on 3 April 1980 and he enlisted in the Regular Army (RA) on 4 April 1980 for 4 years in pay grade E-1 for the training of choice enlistment option for training in military occupational specialty (MOS) 61C (watercraft engineer).  On the date of his enlistment in the RA, he was 21 years and 11 months of age.  His DD Form 4 series (Enlistment/Reenlistment Document - Armed Forces of the United States) contract shows he enlisted for MOS 61C for 4 years.  It does not show he was promised to remain in the United States during the first year of his enlistment or any other promises.  Additionally, his DD Form 4 contains the statement, "The agreements in this section and the attached annex(es) are all the promises made to me by the Government.  ANYTHING ELSE ANYONE HAS PROMISED ME IS NOT VALID AND WILL NOT BE HONORED."  This statement is followed by the applicant's initials of "R.J.S."

4.  He completed basic training (BT) in May 1980.

5.  The U.S. Army Training Center, Fort Jackson, SC, presented the applicant a Certificate of Achievement for his outstanding performance during basic training (BT) in attaining the highest rifle marksmanship score during the BT cycle of     14 April to 30 May 1980.  He was also presented a Superior Performance Certificate for outstanding performance while undergoing BT.

6.  On 31 May 1980, he was reassigned to Fort Eustis, VA to undergo AIT.  On
4 August 1980, he departed training in an AWOL status.  He was returned to military control on 6 August 1980 and he departed AWOL again on 7 August 1980.  He was dropped from the rolls (DFR) of his unit on 6 September 1980 as a deserter.  He surrendered to military authorities and he was returned to military control on 1 October 1980.

7.  On 10 October 1980, a DD Form 458 (Charge Sheet) was prepared by the Commander, Company A, U.S. Army Personnel Control Facility, U.S. Army Processing Center and Fort Dix, Fort Dix, NJ.  He was charged with two specifications of being AWOL from 4 to 6 August 1980 and from 7 August to 1 October 1980.

8.  On 22 October 1980, the applicant requested a delay in the processing of the court-martial charge and specifications against him until the commanding general, Fort Dix, acted on his application for 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.

9.  On 22 October 1980, after consulting with counsel, the applicant requested discharge under the provisions of Army Regulation 635-200, chapter 10.  In his request, he admitted guilt to the charge and acknowledged he understood he could be issued a bad conduct discharge or a discharged under other than honorable conditions.  He also acknowledged the results of issuance of such a discharge.  He waived his rights and elected not to submit a statement in his own behalf.

10.  On 30 October 1980, the applicant’s immediate commander recommended approval of the applicant’s request with an under other than honorable conditions discharge.  The commander stated the applicant had no motivation for continued service and he was pending trial for an offense punishable by a bad conduct or a dishonorable discharge.

11.  On 6 November 1980, the separation authority approved the applicant’s request and directed the issuance of an under other than honorable conditions discharge and reduction to the lowest enlisted grade.

12.  Accordingly, he was discharged on 11 December 1980 in the rank/grade of private (PV1)/E-1, under the provisions of Army Regulation 635-200, chapter 10, for conduct triable by court-martial.  His service was characterized as under conditions other than honorable.  He completed 6 months and 12 days of net active service with time lost from 4 through 7 August 1980 and from 7 August through 30 September 1980.

13.  There is no evidence he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

14.  The applicant contends, in effect, his recruiter assured him that he would remain in the United States during his first year of enlistment.  He also contends his previous Record of Proceedings, Consideration of Evidence, page 3, stated his immediate commander stated, "the applicant had no motivation for continued service and he would not respond to either counseling or rehabilitation."  He states he was never asked if he wanted a counselor and it would have made a difference. 
15.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 10 stated a member who had 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 in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt.  Although an honorable or general discharge was authorized, an under conditions other than honorable discharge was normally considered appropriate.

16.  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.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  His contention his discharge should be upgraded has been noted.  The evidence shows that during AIT he departed AWOL and he was returned to military control.  He again departed AWOL and he was subsequently reported in a DFR status.  Upon his return to military control he was charged with two specifications of AWOL.  After consulting with legal counsel he voluntarily requested discharge in lieu of trial by court-martial.

3.  The evidence also shows he waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully charged.  He acknowledged he understood he could be discharged under other than honorable conditions.  His immediate commander stated that the applicant had no motivation for continued service and he would not respond to either counseling or rehabilitation.  The applicant may be confusing counseling given by a mental health-type counselor with the type of general, leader-to-Soldier-type counseling meant by the commander.  

4.  The applicant waived his opportunity to submit a statement in his own behalf if he believed that counseling statement to be untrue.  The immediate commander was able to observe the applicant on a daily basis and his opinion was taken into appropriate consideration.

5.  His contention that his youth impacted his ability to serve successfully is without merit.  The applicant was 21 years and 11 months of age when he enlisted in the RA.  He completed BT and he was recognized for his superior performance during this training.  He began AIT and he was over 22 years old when he initially went AWOL.  There is no evidence he was any less mature than other Soldiers of the same or of a younger age who served successfully and completed their term of service.  His contentions do not support a change to his discharge.

6.  He has provided insufficient evidence to show that his discharge was unjust.  He also has not provided evidence sufficient to mitigate the characterization of his discharge.  It appears his administrative separation was accomplished in compliance with applicable regulations in effect at the time with no procedural errors which would have jeopardized his rights.  In the absence of evidence to the contrary, Government regularity in the discharge process is presumed.

7.  In view of the foregoing, there is no basis for granting the requested relief.

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 AR20090009971 dated 5 November 2009.



      ________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)                                         AR20100019254



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ABCMR Record of Proceedings (cont)                                         AR20100019254



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