IN THE CASE OF:	  

		BOARD DATE:	  15 November 2011

		DOCKET NUMBER:  AR20110011877 


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 under other than honorable conditions to fully honorable through his Member of Congress.

2.  The applicant states he was charged with larceny, but the charges were later determined to be unfounded.  A discharge under other than honorable conditions is therefore not warranted.  He has lost wages and jobs and has faced prejudice as a result of this injustice.

3.  The applicant provides a DA Form 3975 (Military Police Report).

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 Numbers AC95-10765 on 28 February 1996 and AR2003099270 on 12 August 2004.

2.  The applicant does not meet the criteria for reconsideration.  His case was previously reconsidered on 12 August 2004.  However, he submits a Military Police Report which is considered new evidence that warrants consideration by the Board.

3.  The applicant's record shows he enlisted in the Regular Army on 11 October 1990 and he held military occupational specialty 13B (Field Artillery Cannon Crewmember).

4.  He arrived in Germany on 29 January 1991 and he was assigned to Battery C, 3rd Battalion, 35th Field Artillery.

5.  On 3 August 1991, he departed his unit in an absent without leave (AWOL) status and he was dropped from the Army rolls as a deserter on 3 September 1991.  He surrendered to military authorities at Fort Sill, OK, on 4 September 1991.  He was subsequently attached to the Personnel and Support Battalion, U.S. Army Field Artillery Center, Fort Sill, OK.

6.  On 9 September 1991, his command preferred court-martial charges against him for violation of Article 86 (AWOL) of the Uniform Code of Military Justice (UCMJ) for one specification of being AWOL from 3 August to 4 September 1991.

7.  On or about 9 September 1991, his immediate commander recommended trial by a special court-martial authorized to adjudge a bad conduct discharge.

8.  On 10 September 1991, he consulted with legal counsel and 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 available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

9.  In his request for discharge, he indicated he acknowledged and/or understood:

* he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person
* by requesting discharge he was admitting guilt to the charges against him or of a lesser-included offense that also authorized the imposition of a bad conduct or a dishonorable discharge
* if the discharge request were approved, he could be deprived of many or all Army benefits
* he could be ineligible for many or all benefits administered by the Department of Veterans Affairs
* he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* if the discharge is approved, he could receive an under other than honorable conditions character of service
* he elected not to submit a statement on his own behalf

10.  On 7 October 1991, a Judge Advocate General (JAG) attorney reviewed the applicant's request for voluntary discharge and found it legally sufficient.

11.  On 7 October 1991, consistent with the chain of command's and the JAG officer's recommendations and review, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed his reduction to the lowest enlisted grade and issuance of a discharge under other than honorable conditions.  On 11 October 1991, the applicant was accordingly discharged.

12.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged for the good of the service in lieu of trial by a court-martial with a character of service of under other than honorable conditions.  This form further shows he completed 10 months and 29 days of creditable active service and he had 32 days of lost time.

13.  On 9 May 1994, the Army Discharge Review Board informed him that it reviewed his petition for an upgrade of his character of service and denied it.

14.  On 8 March 1996, the ABCMR denied his petition for an upgrade of his discharge.

15.  On 26 November 1997, the ABCMR issued him a DD Form 215 (Correction to DD Form 214) correcting his name.

16.  On 12 August 2004, the ABCMR denied his request for reconsideration of his earlier request for an upgrade of his discharge.

17.  He provides a Military Police Report, dated 29 May 2007, together with a letter from the U.S. Army Criminal Investigation Command, Fort Belvoir, VA, dated 22 June 2007, informing him that the offense (larceny) for which he was initially charged had been listed as unfounded.  The date of the offense is recorded as 21 July 1991.

18.  Army Regulation 635-200 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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

19.  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.

20.  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 records show he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  He was charged with AWOL from 3 August to 4 September 1991.  

2.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 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.  Further, his discharge accurately reflects his overall record of service.

3.  The Military Police Report he submits appears to clear him of the charge of larceny committed on 21 July 1991.  However, his discharge was based on being AWOL and he voluntarily requested a discharge in lieu of facing a court-martial that could have adjudged a bad conduct discharge or a dishonorable discharge.

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.  His misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to 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 the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Numbers AC05-10765, dated 28 February 1996, and AR2003099270, dated 12 August 2004.



      ___________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)                                         AR20110011877



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ABCMR Record of Proceedings (cont)                                         AR20110011877



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