IN THE CASE OF:	  

		BOARD DATE:	  9 June 2011

		DOCKET NUMBER:  AR20100029314 


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 undesirable discharge to a general discharge.

2.  The applicant states:

* his discharge should be upgraded because of the way it was given and his lack of understanding of the discharge process
* his discharge was given after his injury
* he did not go AWOL (absent without leave); he was given permission by his commander to go on leave
* he was threatened to make a decision to take the undesirable discharge or be thrown in the stockade
* he was only 19 years at the time; young, injured, and afraid
* he did not realize his discharge forfeited all of his military benefits
* if he had been aware of the consequences of his discharge, he would not have accepted the discharge

3.  The applicant provides:

* his DD Form 214 (Report of Separation from Active Duty)
* a self-authored statement
* a letter from his pastor, dated 26 October 2010
* 
a DA Form 4187 (Personnel Action), dated 27 February 1975
* a DA Form 268 (Report for Suspension of Favorable Personnel Action), dated 3 February 1975

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 AC97-11620, on 30 September 1998.

2.  The applicant submitted a new argument and a letter of support.  Although the applicant did not meet the two-tiered standard for reconsideration in that his request is more than 1 year after the Board's original decision and the applicant failed to provide any new substantial evidence, the new argument is considered new evidence and will be considered by the Board as an exception to policy.

3.  The applicant was born on 17 November 1955 and he enlisted in the Regular Army on 8 August 1974 at 18 years and 8 months of age.  He completed basic combat training at Fort Jackson, SC, and he was subsequently reassigned to Fort Belvoir, VA, for his advanced individual training.

4.  On 20 January 1975, he departed his training unit in an AWOL status; however, he returned on 26 January 1975.

5.  While pending charges for this AWOL offense, he again departed his unit in an AWOL status on 3 February 1975 and he was dropped from the rolls (DFR) of his organization as a deserter on the same date.  He returned to military control on 27 February 1975.

6.  On 6 March 1975, his command preferred court-martial charges against him for two specifications of AWOL from 20 to 26 January and from 3 to 27 February 1975.

7.  On 14 March 1975, 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 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.
8.  In his request for discharge he indicated he was making the request of his own free will and he 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.

9.  In connection with his request, he submitted a statement wherein he stated if he stayed in the Army, he would go AWOL again.  He indicated that he would do better outside the Army with a job that he had back home.

10.  On 18 and 19 March 1975, his immediate, intermediate, and senior commanders recommended approval of the applicant's discharge with the issuance of an Undesirable Discharge Certificate.

11.  On 21 March 1975, the separation authority (a major general) 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 the issuance of an Undesirable Discharge Certificate and reduction to private (PV1)/E-1.

12.  On 24 March 1975, he underwent a separation physical at Fort Belvoir, VA.  The military physician found him fully qualified for separation.  His Standard Form (SF) 88 (Report of Medical Examination) shows he was assigned 1-1-1-1-1-1 in all areas of his PULHES and a physical category of "A" indicating he was medically qualified for separation.

13.  He was accordingly discharged on 26 March 1975.  The DD Form 214 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 6 months and 17 days of total active service with 31 days of time lost due to being AWOL.

14.  On 16 February 1982, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

15.  He submitted:

	a.  A self-authored statement, dated 10 October 2010, wherein he states that while at Fort Belvoir he fell and injured his back.  When he was released from the hospital, he tried to continue training but he couldn't.  He requested leave and his commander gave him permission to leave.  Upon his return, he was shocked when he learned that he had been reported AWOL.  His captain denied that he had authorized him leave and told him to accept the dishonorable discharge or he would be sent to the stockade.  He was forced to accept the discharge.  However, he was unaware of the consequences of this action and for years, he was afraid to ask for a correction.  He would really like to reap some of the veteran's benefits.

	b.  A statement, dated 26 October 2010, from his pastor who states that he has known the applicant throughout his entire life.  He describes him as a man of integrity and character.  

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 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, 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.  His discharge accurately reflects his overall record of service.

2.  The applicant was 18 years and 8 months of age when he enlisted and
19 years of age when he went AWOL.  However, there is no evidence that his AWOL was caused by his age or that he was any less mature than other Soldiers who successfully completed their service.

3.  Contrary to his argument that he was unaware of the consequences of his actions at the time, the evidence of record shows he consulted with legal counsel and he was advised of the possible effects of a request for discharge, and of the procedures and rights that were available to him.

4.  There is no evidence in his record and he did not provide any evidence that shows he suffered an injury or illness that led to his discharge.  In fact, he underwent a separation physical that found him fully qualified for separation.

5.  Based on his overall record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.

6.  In view of the foregoing, he is entitled to neither 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 AC97-11620, dated 6 October 1998.



      _______ _  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)                                         AR20100029314



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ABCMR Record of Proceedings (cont)                                         AR20100029314



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