BOARD DATE:	  26 April 2011

		DOCKET NUMBER:  AR20100024322 


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, in effect, reconsideration of his previous application to upgrade his discharge to honorable.  He also submits a new request to change the narrative reason for his discharge to "convenience of the government" and his reenlistment (RE) code to RE-1. 

2.  He states, in effect, at the time he was absent without leave (AWOL) he was trying to return to his unit in Alaska, but a strike prevented his travel, so he returned home.  He was ordered to Fort Hood, TX, and processed out of the Army.  He wanted to complete his tour in Alaska but was not allowed to.  The Army was unjustly harsh to discharge him when he was perfectly willing to return to his unit.

3.  He provides no new evidence in support of his request.

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 AR20090004165 on 23 June 2009.

2.  The applicant was inducted into the Army of the United States on 4 May 1971.  After completing initial entry training, he was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  His DA Form 20 (Enlisted Qualification Record) shows in item 38 (Record of Assignments) that he was assigned for duty in Alaska with Company B, 5th Battalion, 23d Infantry, from 3 November 1971 through 19 August 1972 and dropped from rolls on 20 August 1972.  

4.  The record is void of documentation showing a strike prevented him from returning to his unit in Alaska.

5.  He received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for the following offenses:  

* willfully disobeying a lawful order from an acting superior noncommissioned officer (NCO) on 15 September 1971
* wrongfully communicating a threat to injure an NCO on 29 March 1972
* failing to go at the time prescribed to his appointed place of duty on 30 August 1972

6.  Special Court-Martial Order Number 205, issued by Headquarters Command, U.S. Army Infantry Center, Fort Benning, GA, on 30 October 1972, shows he pleaded guilty and was found guilty of three specifications of being AWOL during the following periods:

* 20 through 31 July 1972
* 3 through 20 August 1972
* 3 through 4 September 1972

He was sentenced to be reduced to private/E-1 and to be confined at hard labor for 100 days.  

7.  After serving his sentence, he was assigned for duty at Fort Hood, TX.  While serving at Fort Hood, he again received NJP under Article 15, UCMJ, for being AWOL from 5 to 16 February 1973. 

8.  A DD Form 458 (Charge Sheet), dated 23 April 1974, shows he was charged with being AWOL from his unit at Fort Hood, TX, during the period 5 June 1973 through 19 April 1974.

9.  On 29 April 1974, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  Prior to submitting his request, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an undesirable discharge, and of the procedures and rights that were available to him.

10.  In his voluntary request for discharge, he indicated he understood that by requesting discharge he was admitting guilt to the charge against him or of lesser included offenses and the imposition of a bad conduct or dishonorable discharge was authorized.  He further acknowledged he understood that if his discharge request were 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.

11.  In a memorandum submitted with his request for discharge he stated he could not see himself doing more time in the Army.  

12. On 17 May 1974, the separation authority approved his request for discharge and directed he be issued an undesirable discharge.  On 19 June 1974, he was discharged accordingly.  He completed 1 year, 9 months, and 7 days of total active service with 489 days of time lost due to being AWOL and in confinement.  

13.  His DD Form 214 (Report of Separation from Active Duty) shows in:

* item 9c (Authority and Reason) – Para 10-1 AR 635-200  SPD: 246 Discharge for Good of the Service
* item 10 (Reenlistment Code) – RE: 3 & 3B

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  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.  

	b.  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.

	c.  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.

15.  Army Regulation 635-5-1 (Separation Program Designator Codes) provides the separation program designator (SPD) codes and associated narrative reasons for separation to be entered on the DD Form 214.  The version of the regulation in effect at the time stated SPD code "246" and the reason "Discharge for the good of the service" were to be used for separations under the provisions of Army Regulation 635-200, paragraph 10-1. 

16.  The version of Army Regulation 601-280 (Army Reenlistment Program) in effect at the time provided the RE codes to be entered in item 10 of the DD Form 214.  The code RE 1 applied to individuals fully qualified for immediate reenlistment.  The code RE 3 applied to individuals who were ineligible for immediate reenlistment due to being discharged for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  The code RE 3B applied to enlisted members who had time lost during their last period of service.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for an upgrade of his discharge, change of the narrative reason for his discharge, or change of his RE code.

2.  Although he contends the Army was unjustly harsh to discharge him when he was perfectly willing to return to his unit in Alaska, the evidence of record shows he was not discharged because of that incident.  

3.  He requested discharge after being charged with being AWOL from his unit at Fort Hood, TX.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge 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.

4.  His record of service shows four instances of NJP and 489 days of time lost due to AWOL and confinement.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to either an honorable or a general discharge.

5.  His DD Form 214 shows the narrative reason for discharge and RE codes required by the governing regulations at the time.  Therefore, he is not entitled to correction of his record to change these entries.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x__  ___x_____  __x______  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 AR20090004165, dated on 23 June 2009.

2.  Regarding changing the narrative reason for separation and RE code, the evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of these issues are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   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)                                         AR20100024322





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ABCMR Record of Proceedings (cont)                                         AR20100024322



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