IN THE CASE OF:	   

		BOARD DATE:	  29 March 2011

		DOCKET NUMBER:  AR20100024150 


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 discharge.

2.  The applicant states he was young and immature at the time.  He did not know the consequences of his actions.  However, he now takes full responsibility for his actions.  He had a drug problem that clouded his thinking.  During his military service, he was a member of the Honor Guard at Fort Carson, CO.  He received multiple awards and served with honors.  He knows that he turned back on his country when he went AWOL (absent without leave) but he has since changed his life.  He has been sober for some time and strives to be a better person.  He improved his education as evidenced by his completion of his high school equivalency diploma and intends to go back to school and he is active in the community.  An upgrade would unlock doors for employment, education, and other benefits.   

3.  The applicant provides his high school equivalency diploma. 

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 AC75-5642, on 12 December 1975. 

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 records show he was born on 12 June 1951 and he was inducted into the Army of the United States at nearly 20 years of age on 1 March 1971. He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 13A (Basic Field Artillery).  

4.  Subsequent to completion of MOS training, he was assigned to Headquarters and Headquarters Company, 4th Infantry Division, Fort Carson, CO, as an Honor Guard.  He was promoted to private first class/E-3 on 16 July 1971.

5.  His records show he was awarded the National Defense Service Medal and the Marksman Marksmanship Qualification Badge with Rifle Bar.

6.  On 9 November 1971, he departed his unit in an AWOL status and on 6 January 1972, he was dropped from the Army rolls as a deserter.  He returned to military control on 10 August 1972.

7.  On 24 August 1972, his command preferred court-martial charges against him for one specification of being AWOL from 20 November 1971 to 10 August 1972.

8.  On 28 August 1972, 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 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 in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

9.  In his request for discharge he indicated he was making the request of his own free will and 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.

10.  On 28 August 1972, the applicant was interviewed by his immediate commander.  During the interview, the applicant assured his commander that he desired to be discharged and his attitude was that of someone who would resist rehabilitation and would not complete his service.

11.  On 21 September 1972, his intermediate commander recommended approval of the applicant's discharge with the issuance of an Undesirable Discharge Certificate.  

12.  On 25 September 1972, the separation authority approved the applicant's request for discharge in accordance with Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial, and directed issuance of an Undesirable Discharge Certificate and reduction to the lowest enlisted grade.  Accordingly, the applicant was discharged on 27 October 1972.

13.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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 10 months and 27 days of creditable active service with 264 days of time lost.

14.  On 3 July 1975, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

15.  On 12 December 1975, the Army Board for Correction of Military Records also denied his request 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 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 to an individual who was discharged for the good of the service.

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.  The applicant's 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 evidence of record shows the applicant was nearly 20 years of age at the time he enlisted and 21 years of age at the time he went AWOL.  However, there is no evidence that he was any less mature than other Soldiers of the same age who successfully completed their term of service or that his misconduct was a result of his age.

4.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to an honorable or 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 AC75-5642, dated 12 December 1975.



      _______ _   _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)                                         AR20100024150



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ABCMR Record of Proceedings (cont)                                         AR20100024150



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