IN THE CASE OF:	  

		BOARD DATE:	  22 September 2011

		DOCKET NUMBER:  AR20110005066 


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 discharge.

2.  The applicant states he was hearing voices while stationed in Germany and because of this condition, he sought treatment.  This condition prevented him from performing to Army standards.  Had his condition of hearing voices been controlled, he would have received an honorable discharge.

3.  The applicant did not provide any evidence. 

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 AC75060017, dated 18 January 1978.

2.  The applicant submits a new argument.  Although he does not meet the two-tiered standard for reconsideration in that his request is more than 1 year after the Board's original decision and he 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.  He enlisted in the Regular Army (RA) on 17 June 1968.  He completed basic combat and advanced individual training and he was awarded military educational specialty 94B (Cook).  He served in Korea from 22 February 1969 to 14 March 1970.

4.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on/for:

* 12 May 1970, for disobeying a lawful order
* 3 August 1970, for failing to go at the time prescribed to his appointed place of duty

5.  He was honorably discharged on 14 September 1970 for the purpose of immediate reenlistment.  He executed a 4-year reenlistment in the RA on 15 September 1970.  He served in Germany from 2 November 1970 to 14 March 1973.

6.  He accepted more NJP under the provisions of Article 15 of the UCMJ on/for: 

* 14 January 1972, for failing to go at the time prescribed to his appointed place of duty and disobeying a lawful order
* 30 May 1972, being found drunk on duty
* 21 June 1972, for failing to go at the time prescribed to his appointed place of duty and disobeying a lawful order

7.  On 21 August 1972, he was convicted by a special court-martial of three specifications of disobeying a lawful order, one specification of being absent without leave (AWOL) on 9 August 1972, and one specification of failing to go at the time prescribed to his appointed place of duty.  The Court sentenced him to confinement at hard labor for 2 months (suspended) and a forfeiture of $150.00 pay per month for 6 months.  The convening authority approved his sentence.

8.  On 29 August 1972, the adjudged sentence of confinement for 2 months (suspended) was vacated and ordered executed.

9.  On 15 January 1973, his command preferred court-martial charges against him for:

* five specifications of disobeying a lawful order
* one specification of being disrespectful
* one specification of possessing marijuana
* two specifications of breaking restriction

10.  On 13 February 1973, 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 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.

11.  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.

12.  On 21 February 1973, his immediate and intermediate commanders recommended approval of his discharge with the issuance of an undesirable discharge.  His immediate commander stated the applicant:

* continuously refused to report to work
* refused to get out of bed or get dressed
* refused to make any effort to clean his area
* made no attempt to improve his conduct
* threatened to beat up other Soldiers
* impacted the unit negatively
* he was examined psychiatrically but no mental disorder was found

13.  On 8 march 1973, the separation authority (a lieutenant 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/E-1.

14.  He was accordingly discharged on 20 March 1973.  The DD Form 214 (Armed Forces of the United states Report of Transfer or Discharge) 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 4 years, 4 months, and 15 days of total active service with 45 days of time lost.
15.  On 20 May 1974, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

16.  On 6 April 1978, the Army Board for Correction of Military Records, as a matter of equity, granted him partial relief in the form of an upgrade of the character of service to under honorable conditions (general).  Accordingly, he was reissued a new DD Form 214 that reflected his upgraded character of service. 

17.  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.

18.  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 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.  

2.  There is no clinical evidence in his available records and he provides none to show he "heard voices" or was diagnosed with a psychiatric or mental condition that caused his extensive misconduct.  It appears his misconduct was caused by the "choices" he made rather than the "voices" he allegedly heard. 
3.  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.  His military career was marred with misconduct from beginning to end and included multiple instances of NJP, AWOL, one court-martial, substandard performance, indifference to the Army, and frequent counseling.

4.  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.  Therefore, he is entitled to an honorable.

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 AC75060017, dated 18 January 1978.



      ______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)                                         AR20110005066





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ABCMR Record of Proceedings (cont)                                         AR20110005066



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