BOARD DATE:	20 March 2012  

		DOCKET NUMBER:  AR20110012858


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 to upgrade his undesirable discharge (UD) to a general, under honorable conditions discharge (GD) or honorable discharge (HD).  He also requests, as a new issue, service credit for an additional 13 months and 22 days.

2.  The applicant states:

   a.  His UD should be upgraded to a GD or HD because this Boards original record of proceedings (ROP) cited material errors.

	b.  The original ROP incorrectly shows he was confined during the period 7 November 1968 through 4 February 1969, however the special court martial (SPCM) sentenced him to 3 months hard labor without confinement.

	c.  He and his commander agreed it was in the Army’s and his best interest to discharge him from military service because of the effects his brother’s death had on his behavior, thereby further confirming he did not perform 3 months hard labor in confinement.

	d.  The significance in the various types of discharges were never explained to him and had he known the implications of an UD and the effects it would have on his civilian life, he would have done his best to remain in the Army.

   e.  He was not absent without leave (AWOL) during the period 13 November 1968 through 4 February 1969 or 4 April 1970 through 4 March 1971, but was on base performing his military duties instead and as a result his record should be corrected to show he completed 1 year, 5 months, and 22 days military service instead of the 4 months it currently shows.

3.  The applicant provides:

* Self-authored statement
* two SPCM orders
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)

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 AR20100016497 on 7 December 2010.

2.  During its original review of this case, the Board determined:

	a.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of his case.

	b.  The unfortunate loss of his brother, parental status, and multiple absences were considered during his SPCM and specifically, the loss of his brother was most likely a significant mitigating factor in determining the outcome of his SPCM or AWOL.  However, his subsequent AWOL of more than 2 years did not merit the same level of consideration.  Accordingly, his lost time rendered his service unsatisfactory.  Therefore, the Board determined he was not entitled to an upgrade of his UD.

3.  The applicant provides new argument contending the Board cited material error in his case by indicating he was confined for 3 months during the period 13 November 1968 to 4 February 1969 when he actually was not; his UD should be upgraded to a GD. 

4.  As a new request, the applicant states he should be credited with 2 months and 22 days service for the period 13 November 1968 to 4 February 1969.  He also believes he should receive 11 months additional service credit for the period 4 April 1970 to 4 March 1971 because he was present for duty at this time and not in confinement.

5.  The applicant’s record shows he was inducted into the Army of the United States on 4 April 1968.  While attending initial entry training, he departed absent without leave (AWOL) on 24 May 1968.

6.  Pursuant to his plea, a SPCM convicted the applicant of being AWOL from 24 May to 7 November 1968.  He was sentenced to 3 months hard labor with confinement.  The court martial convening authority approved the sentence and ordered it duly executed on 23 December 1968.

7.  Headquarters, U.S. Engineer Center Brigade, SPCM Order Number 143, dated 5 February 1969, shows the unexecuted portion of the approved sentence to perform hard labor without confinement for 3 months was suspended effective 5 February 1969.

8.  The applicant's DA Form 20 (Enlisted Qualification Record) shows in item 44 (Time Lost) he accrued 933 days during the following periods for the indicated reasons:

24 May – 6 November 1968 
167 days
AWOL
7 – 12 November 1968
    6 days
Civilian Confinement
13 November 1968 – 4 February 1969
  84 days
Confinement
10 February 1969 – 17 December 1970
676 days
AWOL
9.  On 11 January 1971, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from on or about 10 February 1969 through on or about or about 17 December 1970.

10.  On 15 January 1971, 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 UD discharge, and of the procedures and rights that were available to him.  Subsequent to this counseling, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge.

11.  In his request for discharge the applicant acknowledged his understanding that he would be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also indicated that he understood he could face substantial prejudice in civilian life because of his UD and he elected to submit a statement on his own behalf. 

12.  In his statement, the applicant provided:

	a.  prior to entering military service, he had never been separated from his family of four brothers, two sisters, and his parents;

	b.  his family was involved in an automobile accident on their way to visit him at Fort Bragg, North Carolina, wherein his six year old brother was killed and his mother and father severely injured; and

	c.  after the accident, he could no longer take being in the Army and felt his brother might not have been killed if he had not been at Fort Bragg.

13.  On 10 February 1971, the applicant’s battalion commander issued a memorandum for record and stated:

	a.  the applicant was interviewed on 14 January 1971, concerning his separation from the service under the provisions of Army Regulation 635-200, and the possibility of receiving an UD;

	b.  the applicant went AWOL from basic combat training after his six year old brother was killed in an automobile accident;

	c.  subsequent to the applicants court martial for his initial absence, he elected to go AWOL again stating he “just couldn’t handle it”; 

	d.  the applicant will not return to duty and is prepared to accept an UD; and

	e.  it was his opinion the applicant’s rehabilitative potential was poor; he would not respond to counseling and guidance, and the commander had recommended the applicant’s discharge from military service with an UD.

14.  On 17 February 1971, the separation authority approved the applicant’s request for discharge and directed that he receive an UD under the provisions of chapter 10, Army Regulation 635-200.  On 4 March 1971, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he completed a total of 4 months and 8 days of creditable active military service and he accrued a total of 972 days of time lost due to AWOL.

15.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his UD within that board's 15-year statute of limitations.  

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

   a.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  Although the separation authority may authorize a GD or honorable discharge (HD) if warranted by the members record, an under other than honorable conditions discharge is normally considered appropriate for members separated under these provisions.  At the time of the applicant's discharge, the issuance of an UD was authorized.
   
   b.  Paragraph 3-7a of the enlisted separations regulation 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate

   c.  Paragraph 3-7b, 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 honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his request for reconsideration to upgrade his UD to an HD should be approved because the Board cited material error in his original case and because the implications of an UD were not explained to him during the discharge process.  However, there is insufficient evidence to support these claims. 

2.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge and after consulting with defense counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  It further confirms that his separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process.  As a result, there remains an insufficient evidentiary basis to support an upgrade of his discharge.  

3.  In addition, the record confirms the applicant consulted with legal counsel and was fully advised of the basis for the contemplated court-martial action against him and of his rights in connection with that action.  He also indicated that he understood he could face substantial prejudice in civilian life because of his UD and subsequent to receiving this legal counsel, he voluntarily requested discharge in order to avoid a trial by court-martial that could have resulted in his receiving a punitive discharge.  

4.  Further, any error cited in this Board’s ROP dated 7 December 2010, more than 39 years after his discharge, would be administrative and would not negate or dismiss the offense of which the applicant was charged that formed the basis for his voluntary request for discharge under the provisions of Army Regulation 635-200, Chapter 10, and ultimately led to the UD he received.

5.  Finally, the evidence of record confirms a SPCM convicted the applicant of being AWOL from 24 May – 6 November 1968, totaling 167 days, and sentenced him to 3 months hard labor without confinement.  However, his DA Form 20 and DD Form 214 confirm he accrued a total of 972 days time lost from on or about 24 May – 6 November 1968 (167 days); 7 -12 November 1968 (6 days); 13 November 1968 – 4 November 1969 (84 days); and 10 February 1969 to 17 December 1970 (676 days).  Therefore, absent any evidence to the contrary, there is no basis for making any changes to the applicant’s service as he claims.

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 AR20100016497 dated 7 December 2010 or add any service credit.



      _______ _ 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)                                         AR20110010276



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ABCMR Record of Proceedings (cont)                                         AR20110012858



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