IN THE CASE OF:	  

		BOARD DATE:	  22 September 2011

		DOCKET NUMBER:  AR20110004694 


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 through his Member of Congress reconsideration of his previous request to upgrade his discharge.  The applicant's Congressman requests that he be provided a written response to share with the applicant. 

2.  The applicant states, in effect, that he desires the 24 March 2009 decision of the Board be withdrawn and that his case be reconsidered.

3.  The applicant's Congressman provides a letter from the applicant's spouse requesting congressional assistance and a letter from a concerned third-party.

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 AR20090000619, on 24 March 2009.

2.  The applicant's original case was considered more than 1 year ago.  However, the documents that were provided are considered new evidence that will be considered as an exception to policy.

3.  The applicant enlisted in the Regular Army on 1 May 1978 and served in military occupational specialty 76D (Equipment Maintenance Specialist).  He served through a series of reenlistments and attained the rank/grade of sergeant/E-5 on 5 May 1986.  
4.  The applicant served a tour of duty in the Federal Republic of Germany from 
6 July 1982 to 5 July 1988.  He returned to the United States and he was assigned to Fort Carson, Colorado.

5.  On or about 7 February 1990, the applicant was assigned to the 23rd Support Group in the Republic of Korea and subsequently reassigned to the 802nd Engineer Battalion.

6.  On 12 October 1990, charges were preferred under the Uniform Code of Military Justice (UCMJ).  The applicant was charged with one specification of impersonating a staff sergeant/E-6, one specification of making a fraudulent claim, and one specification of presenting a false claim, in violation of Articles 134 and 132, UCMJ, respectively.  On 19 October 1990, the convening authority referred these charges for trial by a special court-martial empowered to adjudge a bad conduct discharge.

7.  The applicant 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 under other than honorable conditions discharge, and of the procedures and rights that were 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-martial. 

8.  In his request for discharge, the applicant indicated he understood that by requesting a discharge he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.   

9.  On 3 December 1990, the separation authority approved the applicant’s request for discharge and directed that he be discharged under other than honorable conditions.  

10.  The applicant’s records contain a DA Form 3822 (Report of Mental Status Evaluation) which states in the opinion of the attending physician, the applicant had the mental capacity to understand and participate in the proceedings.  

11.  On 19 December 1990, the applicant was discharged accordingly.  He had completed a total of 12 years, 7 months, and 19 days of creditable active military service.

12.  On 27 October 1995, the applicant was informed his application to the Army Discharge Review Board for an upgrade of his discharge was denied.  

13.  The applicant’s spouse wrote a letter stating, in effect, that they have been fighting to get the applicant’s discharge upgraded for many years and have requested assistance from various members of Congress to no avail.  The applicant's spouse had previously written letters of support stating, in effect, the applicant was mentally tormented into signing a request for discharge for the good of the Army.  She further stated they received poor medical care while serving in the Federal Republic of Germany which caused her, the applicant, and their children to suffer from disabilities.  Military lawyers assured the applicant there was nothing to worry about.  But, just prior to the court-martial he was informed he would get 5 years in jail if he did not request an administrative discharge.

14.  On 24 January 2011, a concerned third-party contacted a member of Congress on behalf of the applicant requesting an upgrade of the applicant’s discharge.  The concerned party submitted a letter which gives a brief overview of the applicant’s military service and the events she alleges led up to and occurred throughout the discharge process.  The letter further elaborates on the family’s health, healthcare issues, and closes with the argument that the applicant could consider a psychological/neurological analysis to see if he was capable of understanding what the military was telling him while undergoing the discharge process. 

15.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate.

16.  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.
17.  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 contention that his discharge should be upgraded was carefully reconsidered and it was determined that there is still insufficient evidence to support this request.

2.  His records show he was charged with the commission of offenses 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 court-martial.  He voluntarily, willingly, and in writing, requested a 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.  

3.  A concerned third-party offers a new argument which states, in effect, the applicant may not have been capable of understanding what the military was telling him while undergoing the discharge process.  The applicant’s record contains a Report of Mental Status Evaluation completed at the time of separation which clearly shows, in the opinion of competent medical authority, the applicant possessed the mental capacity to understand and participate in the separation proceedings.  Therefore, this argument is not sufficient to support his request for an upgrade of his discharge.

4.  Although the applicant alleges receiving poor quality medical care during his military service, there is no evidence in his military records and the applicant has not provided sufficient evidence supporting this contention.  Additionally, there is no evidence which shows the applicant's misconduct was as a direct result of the alleged lack of/or quality of care.  Therefore, this argument is not sufficient to support his request for an upgrade of his discharge.

5.  The applicant's record of good service is greatly diminished and is outweighed by the circumstances of his discharge.  

6.  Based on this record of indiscipline, the applicant's service did not meet the standard of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, the applicant is not entitled to an honorable or a general discharge.

7.  Additionally, the ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  The granting of veteran's benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for health care and other benefits should be addressed to the Department of Veterans Affairs.

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 AR20090000619, dated 24 March 2009.



      ____________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)                                         AR20110004694



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ABCMR Record of Proceedings (cont)                                         AR20110004694



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