IN THE CASE OF:	  

		BOARD DATE:	  10 January 2012

		DOCKET NUMBER:  AR20110013402 


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 under other than honorable conditions discharge.

2.  The applicant states three months into his assignment to Germany, he received information that his mother was ill.  His unit granted him 30 days of emergency leave.  Shortly upon return home, his mother passed away.  Other family members were financially dependent on him at the time.  Although his unit commander sent him to the Army Emergency Relief for assistance, money was tight and his mother had no insurance.  He wanted to leave and try to find a job to help his family members.  He ended up going in an absent without leave (AWOL) status for 271 days.  He was ultimately discharged with an under other than honorable conditions discharge.  He knows he made a mistake but he believes he tried to handle the situation to the best of his knowledge and ability at the time. 

3.  The applicant provides:

* Letter from his uncle
* DD Form 214 (Report of Separation from Active Duty)
* DD Form 4 (Enlistment or Reenlistment Document)
* DA Form 2-1 (Personnel Qualification Record)
* Enlistment Travel Orders
* DA Form 873 (Certificate of Clearance and/or Security Determination)
* 
Assignment, reassignment orders, and/or attachment orders
* Emergency leave orders
* Separation packet
* Mother's certificate of death 

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 AC89-08735, on 18 April 1990.

2.  The applicant's request was not received within 1 year of the original Board's decision.  However, he now provides a new argument as well as a statement from his uncle, neither of which was previously considered by the Board.  Therefore, they are considered new evidence and as such warrant consideration by the Board.

3.  His record shows he enlisted in the Regular Army on 6 August 1976 and he held military occupational specialty 16J (Defense Acquisition Radar Crewman).  The highest rank/grade he attained during his military service was private (PV2)/E-2.  He served in Germany with 1st Battalion, 59th Air Defense Artillery, from 10 January 1977 to on or about 25 March 1977.

4.  On 26 March 1977, he departed Germany on a 30-day emergency leave.  He was subsequently attached to the U.S. Army Training Center, Fort Dix, NJ, effective 26 April 1977, pending a compassionate reassignment.  It appears that he was permanently assigned to Fort Dix on 17 June 1977.

5.  On 11 October 1977, he departed his unit in an AWOL status and on 10 November 1977, he was dropped from the rolls of the Army as a deserter.  He was apprehended by civil authorities in Philadelphia, PA, on 7 July 1978, and he was returned to military control at Fort Dix on 9 July 1978.

6.  On 14 July 1978, court-martial charges were preferred against the applicant for one specification of being AWOL from 11 October 1977 to 9 July 1978.

7.  On 14 July 1978, 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 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 acknowledged he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person.  He also indicated he understood that 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 discharge or a dishonorable discharge.  He further acknowledged he understood that if the discharge request were approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  His request also stated, "Moreover, I hereby state that under no circumstances do I desire further rehabilitation, for I have no desire to perform further military service."

9.  On 18 and 20 July 1978, his immediate and intermediate commanders recommended approval of the applicant's discharge with the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

10.  On 24 July 1978, consistent with the chain of command's recommendation, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial, and directed issuance of an Undesirable Discharge Certificate and reduction to the lowest enlisted grade.

11.  On 10 August 1978, he was accordingly discharged.  The DD Form 214 he was issued shows he was discharged for the good of the service - in lieu of trial by court-martial with a character of service of under other than honorable conditions.  This form further confirms he completed 1 year, 3 months, and
7 days of net active service this period with 271 days of time lost.

12.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

13.  He submitted a letter from his uncle (a retired U.S. Air Force senior master sergeant) who restates the death of the applicant's mother as well as the financial burden at the time.  He opines that the stress and indecision led the applicant to go AWOL.  However, due to the passage of time, the applicant should be considered for an upgrade.
14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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, 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.

15.  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.

16.  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 contends his under other than honorable conditions discharge should be upgraded to an honorable discharge.

2.  The applicant's 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 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 tragic death of the applicant's mother coupled with the subsequent stress and the financial burden at the time is noted.  However, the Army authorized the applicant emergency leave and subsequent reassignment to Fort Dix specifically for this reason.

4.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge to either 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 AC89-08735, dated 18 April 1990.



      ___________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)                                         AR20110013402



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ABCMR Record of Proceedings (cont)                                         AR20110013402



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