IN THE CASE OF:	  

		BOARD DATE:	  3 May 2011

		DOCKET NUMBER:  AR20100028105 


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 petition requesting an upgrade of his discharge under other than honorable conditions (UOTHC).

2.  The applicant states he is enclosing medical evidence to explain his request for reconsideration to the Board.

3.  The applicant provides a self-authored statement and four documents regarding his current medical condition in support of his request for reconsideration.

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 AR20100010451 on 5 October 2010.

2.  During its original review of the case, the Board, while finding the applicant's post-service conduct admirable, determined this did not sufficiently mitigate his misconduct while serving as an enlisted member of the U.S. Armed Forces.  It further concluded the type of discharge received by the applicant and the reason for his discharge were appropriate considering all the known facts of the case and as a result there was no basis to warrant upgrading his discharge.  The Board noted it does not upgrade properly-issued discharges solely for the purpose of qualifying applicants for benefits from other Federal or State agencies.

3.  The applicant now provides medical documents and doctors' letters confirming he is suffering from hypercholesterolemia, peripheral vascular disease with two left leg stents and one right leg stent, and coronary artery disease with seven cardiac coronary stents.  The medical reports further indicate he is taking multiple medications for these conditions and he has been further diagnosed with a chronic lung condition.  He also provides a supporting letter and newspaper article which indicate the conditions he suffers from were frequent in 9/11 responders.

4.  The applicant's record shows he enlisted in the Regular Army on 12 March 1979 and was trained in and awarded military occupational specialty 13B (Cannon Crewman).  It further shows he was advanced to private first class/E-3 on 1 June 1980 and this is the highest rank he attained while serving on active duty.  His record documents no acts of valor or significant achievement.

5.  On 26 June 1980, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 134 of the Uniform Code of Military Justice (UCMJ) by wrongfully possessing marijuana.

6.  On 28 July 1980, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial and of the maximum permissible punishment authorized under the UCMJ.  He was also advised of the possible effects of a UOTHC discharge and of the procedures and rights available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-marital.

7.  In his request for discharge, the applicant acknowledged that by submitting the request for discharge he was admitting he was guilty of the charge against him or of a lesser-included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He confirmed his understanding that if his request for discharge were approved, he could receive a UOTHC discharge.  He further stated he understood that receipt of a UOTHC discharge could result in being deprived of many or all Army benefits, possible ineligibility for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under State and Federal laws.

8.  On 4 August 1980, the separation authority approved the applicant's request for discharge and directed he receive a UOTHC discharge and that he be reduced to the lowest enlisted grade.  On 12 August 1980, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed 1 year, 5 months, and 1 day creditable active military service.

9.  On 21 December 1982 after carefully reviewing the applicant's complete military record and the issues he presented, the Army Discharge Review Board (ADRB) denied his request for an upgrade of his discharge.  The ADRB determined the applicant's discharge was proper and equitable and voted not to upgrade the characterization of his service or to change the reason for his separation.

10.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides for members who have committed an offense or offenses for which the authorized punishment includes a punitive discharge to submit a request for discharge for the good of the service in lieu of trial by court-martial anytime after charges have been preferred.  A UOTHC discharge normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial.  However, the separation authority may direct a general discharge (GD) if such is merited by the Soldier's overall record during the current enlistment.  An honorable discharge (HD) is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper.

11.  Army Regulation 635-200 provides that an HD 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.  It also provides that a GD 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 HD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention his discharge should be upgraded because he now suffers from medical conditions and is in need of medical benefits has been carefully considered.  However, while his condition is unfortunate, as he was advised in the original decision of the Board, relief is not granted solely for the purpose of obtaining veterans' benefits.

2.  The evidence of record confirms the applicant was charged with the commission of an offense 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 applicant were fully protected throughout the separation process.

3.  The record confirms the applicant requested discharge in lieu of trial by court-martial in order to avoid a possible punitive discharge.  The UOTHC discharge received by the applicant was normal and appropriate under the regulatory guidance.

4.  While the applicant's post-service conduct is noteworthy, his record documents no acts of significant achievement or valor and did not support the issuance of an HD or a GD by the separation authority at the time of his discharge and it does not support an upgrade to an HD or a GD at this time.  His overall record of service is not sufficiently meritorious to support granting the requested relief.

5.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant failed to submit evidence that would satisfy this requirement.

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 the overall merits of this case are 


insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20100010451, dated 5 October 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)                                         AR20100028105



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100028105



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1