IN THE CASE OF:	  

		BOARD DATE:	  17 May 2011

		DOCKET NUMBER:  AR20100027516 


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 application requesting an upgrade of his general, under honorable conditions discharge (GD) to an honorable discharge (HD).

2.  The applicant states the original decision of the Board was skewed because the Board believed it was considered an upgrade of an undesirable discharge (UD) instead of a GD.  He further states his initial enlistment date should be reflected as 7 May 1968, and that the advice he received from legal counsel on 10 December 1971 related only to the effects of a GD.  He further states legal counsel advised him the only benefit he would lose was the military burial benefit. He further claims legal counsel informed him his discharge would be automatically upgraded within 6 months.  He finally states the separation authority approved his request for discharge and directed he receive a GD.

3.  The applicant provides self-authored statements containing new arguments and his DD Form 214 in support of his application.  

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 AR20090014654, on 26 January 2010.  

2.  During the original review of the case, the Board found the applicant’s discharge was proper and equitable and that his record was not sufficiently meritorious to support an upgrade to an HD.  The Board’s decisional document did indicate the applicant’s initial discharge was a UD instead of a GD, as the record indicates.  It also indicates the applicant initially entered active duty on
7 January 1969, as is reflected on the DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); however, he claims he initially entered active duty on 7 May 1968.

3.  The applicant now provides new arguments indicating the Board’s decision may have been compromised by the fact the decisional document indicated he initially received a UD, and that he initially entered active duty on 7 January 1968.  He also states when he consulted with legal counsel he was advised only of the effects of a GD, and that he was informed his discharge would be automatically upgraded within 6 months.

4.  The applicant’s record shows he initially enlisted in the Regular Army on 
7 May 1968, and that he served through 6 January 1969, at which time he was honorably discharged for the purpose of immediate reenlistment.  It further shows he reenlisted and began the period of enlistment under review on 7 January 1969.

5.  The applicant’s record shows he earned the National Defense Service Medal, Parachutist Badge, and Expert Marksmanship Qualification Badge with Rifle 
(M-16) and Pistol (.45 caliber) Bars during his active duty tenure.  His record documents no acts of valor or significant achievement.

6.  The applicant’s disciplinary history includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on five separate occasions between 11 March 1969 and 
27 August 1971; and a special court-martial (SPCM) conviction on 29 July 1971.

7.  On 9 September 1971, a DD Form 458 (Charge Sheet) was prepared preferring court-martial charges against the applicant for three specifications of violating Article 90 of the UCMJ for willfully disobeying a lawful command from a commissioned officer and three specifications of violating Article 89 of the UCMJ for behaving himself with disrespect toward a commissioned officer.

8.  On 10 December 1971, the applicant consulted with legal counsel and he was advised of the basis for his contemplated trial by court-martial under circumstances that could lead to a bad conduct discharge, of the effects of a request for discharge, and of the rights available to him.  

9.  After consulting with legal counsel, the applicant voluntarily requested 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.  In his discharge request, he acknowledged his understanding that he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate and that as a result of being issued such a discharge he could be deprived of many or all Army benefits.  He also confirmed his understanding 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 law.  He further acknowledged he could expect to encounter substantial prejudice in civilian life by reason of a UD.

10.  On 17 December 1971, the separation approved the applicant’s discharge under the provisions of Army Regulation 635-200, chapter 10, paragraph 10-6, for the good of the service and directed the issuance of a DD Form 257A (General Discharge Certificate).  He was accordingly discharged on 7 January 1972 with a general discharge.

11.  On 24 September 1983, the Army Discharge Review Board (ADRB), after carefully considering the applicant’s overall record of service and all evidence presented, determined the applicant’s discharge was proper and equitable, and voted to deny the applicant’s request for an upgrade of his discharge.  

12.  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 an individual who was discharged for the good of the Service.  

13.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the fact the decision document in the original Board decision erroneously indicated he received a UD and this skewed the Board’s decision has been carefully considered.  However, while there were minor errors in the decisional document including the indication he received a UD, there is no evidence this skewed the final Board decision not to upgrade the applicant’s discharge.

2.  There is also no evidence indicating the applicant was told his discharge would be automatically upgraded in six months, or that he was advised of specific benefit losses.  The request for discharge on file confirms the applicant was in fact advised of the impact of a UD because he could have received a UD, and there is no indication he was informed of an automatic discharge upgrade.  Therefore, the evidence supports neither of these claims.  The Army does not now have nor has it ever had a policy that provided for automatic discharge upgrades based on the passage of time.  Discharges may be upgraded by either the ADRB or this Board if there is evidence the discharge was unjust or inequitable, neither of which conditions applies in this case. 

3.  The evidence of record confirms the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  It also shows that after consulting with defense counsel, the applicant voluntarily requested discharge in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the FSM were fully protected throughout the separation process. 

4.  The record also shows that although the applicant could have received a UD, the separation authority directed he receive a GD.  However, given his record documents no acts of valor or significant achievement, but does reveal an extensive disciplinary history, the applicant’s overall record of service was not sufficiently meritorious to support the issue of an HD by the separation authority, and does not support an upgrade to an HD at this time.  


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 AR20090014654, dated 26 January 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)                                         AR20100027516



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ABCMR Record of Proceedings (cont)                                         AR20100027516



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