IN THE CASE OF:	  

		BOARD DATE:	  17 February 2011

		DOCKET NUMBER:  AR20100021171 


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 under other than honorable conditions discharge to fully honorable. 

2.  The applicant states his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he received an under other than honorable conditions discharge.  This may be due to the fact that he reenlisted 6 days prior to the expiration of his first term of service, so the second term carried over.  He adds that his discharge should be a reflection of his overall record of service and not just one incident (a clash of personalities over housing rules).  His awards and decorations clearly show he took pride in his duties as a Soldier and he remains to this day honored to have served his country.  He made a mistake but it does not warrant a lifetime punishment.  

3.  The applicant provides a copy of the original Record of Proceedings. 

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 AR20090017728 on 27 May 2010.

2.  The applicant submitted a new argument which was not previously reviewed by the ABCMR; therefore, it is considered new evidence and as such warrants consideration by the Board. 
3.  The applicant's record shows he enlisted in the Regular Army (RA) for a period of 3 years on 20 May 1983.  He completed basic combat and advanced individual training and was awarded military occupational specialty 94B (Food Service Specialist). 

4.  His records also show he served in Germany from 12 November 1985 to 9 January 1989.  While in Germany, he executed a 3-year reenlistment on 15 May 1986.  He was awarded the Army Service Ribbon, Good Conduct Medal, Army Achievement Medal, Overseas Service Ribbon, and Expert Marksmanship Qualification Badge with Rifle Bar (M-16).  The highest rank/grade he attained during his period of military service was specialist four/E-4.

5.  On 20 June and 25 August 1986, he received letters of dishonored checks from the Darmstadt Community Check Control and in each case his identification card was stamped.  His check cashing privileges were suspended for 3 years after the first instance and indefinitely after the second instance. 

6.  On 1 July 1988, he was apprehended by the Wuerzburg Military Police for drunk driving.

7.  In June 1988, the applicant was investigated by the Wuerzburg Resident Agency, U.S. Army Criminal Investigation Command (USACIDC, also known as CID), for larceny, unlawful cohabitation, wrongful appropriation of government property, false official claim, and fraud. 

8.  On 11 July 1988, the applicant’s immediate commander initiated a Bar to Reenlistment Certificate against him citing his letters of indebtedness, the CID investigation, and his drunk driving.   His bar was ultimately approved by the approval authority.

9.  On 15 November 1988, his command preferred court-martial charges against him for one specification each for:

* making a false claim against the Government
* wrongfully appropriating the use of Government quarters
* wrongfully cohabiting with a woman not his wife 
* falsifying an application for and assignment to military family housing
* falsifying his service member’s group life insurance certificate and record of emergency data
* operating a vehicle while drunk 


10.  On 9 December 1988, he 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 for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

11.  In his request for discharge, he 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 Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  His request also stated, "Moreover, I hereby state that under no circumstances do I desire further rehabilitation, for I have no desire to perform further military service."  

12.  He also submitted a statement on his own behalf in which he essentially stated that he was a good Soldier but he made a mistake. 

13.  On 20 December 1988, consistent with the chain of command's and the Staff Judge Advocate's recommendations, 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 be reduced to the lowest enlisted grade and issuance of an under other than honorable conditions discharge.  On 10 January 1989, the applicant was accordingly discharged.  

14.  The DD Form 214 he was issued shows he was discharged for the good of the service in lieu of trial by a court-martial with a characterization of service of under other than honorable conditions.  This form further shows he completed 5 years, 7 months, and 21 days of creditable active service.  Item 18 (Remarks) of his DD Form 214 shows the entry "Immediate Reenlistment This Period 830520 - 860514." 

15.  On 8 February 1995, the Army Discharge Review Board denied the applicant's petition for an upgrade of his discharge.

16.  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.

17.  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.

18.  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 contends his discharge should be upgraded. 

2.  His records show 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.  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.  Further, his discharge accurately reflects his overall record of service.

3.  The applicant's service record to include his foreign service in Germany, his awards and decorations, and his record of indiscipline were considered.  Based on his overall record of indiscipline, his 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, he is not entitled to a general or an honorable discharge.
4.  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 separation of two or more periods of service is not authorized.  The applicant’s DD Form 214 correctly reflects his record of service and contains no errors.  Therefore, there is no basis for granting the applicant's 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 AR20090017728, dated 27 May 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)                                         AR20100021171



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100021171



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1