IN THE CASE OF:	  

		BOARD DATE:	  17 January 2012

		DOCKET NUMBER:  AR20110013896 


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 the Board's previous denial of his request for an upgrade of his undesirable discharge to a general discharge.

2.  He states he went absent without leave (AWOL) because his family had health and financial problems which he told his captain (taken to mean commander) about; and because he was sexually assaulted by another Soldier (which he did not divulge while in the military).  He further states he was AWOL only 335 days instead of 470 days as reflected on his DD Form 214 (Certificate of Release or Discharge from Active Duty) and his discharge should be upgraded based on this error. 

3.  He provides no additional documentary evidence in support of this application.

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 AR20100027548, on 26 May 2011.

2.  The applicant's contention that Army records incorrectly show he was AWOL 470 days when he was AWOL only 335 days; that his family had health and financial problems; and that he was sexually assaulted by another Soldier is a new argument, which requires that the Board reconsider his request.

3.  He was inducted into the Army on 8 September 1969.  He completed training and was awarded the military occupational specialty of light weapons infantryman. 
 
4.  On 20 February 1970, he accepted nonjudicial punishment (NJP) for being AWOL from on or about 10 February 1970 to on or about 19 February 1970.

5.  On 20 April 1971, he was convicted by a special court-martial of one specification of being AWOL from on or about 7 January to on or about 2 March 1971.

6.  On 11 July 1972, court-martial charges were preferred against him for one specification of being AWOL from on or about 4 October 1971 to on or about
1 July 1972.

7.  On 13 July 1972, 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, 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 in accordance with 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 indicated he had not been subjected to coercion with respect to his request for discharge.  He also acknowledged he understood if the discharge request was approved, he could be deprived of many or all Army benefits, he could expect to encounter substantial prejudice in civilian life, could be ineligible for many or all benefits administered by the Veterans Administration (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He further elected not to submit a statement in his own behalf.

9.  His immediate, intermediate, and senior commanders recommended approval of his discharge with an Undesirable Discharge Certificate.

10.  On 27 July 1972, 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 court-martial.  He directed the issuance of an Undesirable Discharge Certificate.  On 27 July 1972, the applicant was discharged accordingly.

11.  The DD Form 214 he was issued shows he was discharged for the good of the service - in lieu of a court-martial with a character of service of under other than honorable conditions and issuance of an Undesirable Discharge Certificate. This form further confirms he completed 1 year, 7 months, and 7 days of creditable active military service with 470 days of time lost.

12.  Item 44 (Time Lost Under Section 972, Title 10, U.S. Code and Subsequent to Normal Date Expiration Term of Service (ETS)) of his DA Form 20 (Enlisted Qualification Record) shows he had a total of 470 days of AWOL. 

13.  On 23 December 1975, the Army Discharge Review Board (ADRB) awarded him a clemency discharge (neutral discharge) pursuant to Presidential Proclamation Number 4313, dated 16 September 1974.  With that, he was issued:

* A DD Form 215, dated 10 December 1975, that added the issuance of a clemency discharge
* A letter, dated 28 August 1975, explaining to him that a clemency discharge is a neutral discharge that replaced his undesirable discharge
* A Presidential certificate of full pardon

14.  On 29 December 1976, the ADRB denied his petition for an upgrade of his discharge.

15.  Presidential Proclamation 4313, dated 16 September 1974, was issued by President Ford and affected three groups of individuals.  One group was members of the Armed Forces who were in an unauthorized absence status. These individuals were afforded an opportunity to return to military control and elect either a discharge under other than honorable conditions under Presidential Proclamation 4313 or to stand trial for their offenses and take whatever punishment resulted.  For those who elected discharge, a Joint Alternate Service Board composed of military personnel would establish a period of alternate service of not more than 24 months that the individuals were to perform.  If they completed the alternate service satisfactorily, they would be entitled to receive a Clemency Discharge.  The Clemency Discharge did not affect the underlying discharge and did not entitle the member to any benefits administered by the VA.

16.  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 VA 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.

17.  Army Regulation 635-200, paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant has provided no evidence to support his contention that his family had health and financial problems or that he spoke with his commander about this.  The Army has policies and procedures to deal with hardships.  Since there is no evidence he requested assistance such as reassignment or separation due to this alleged hardship, it must be presumed that his circumstances were determined to be insufficient justification to warrant such action.

2.  He further contends he went AWOL because he was sexually assaulted by another Soldier, which he states he did not divulge while in the military.  However, he hasn't shown why this alleged incident would justify his misconduct.

3.  He further contends his discharge should be upgraded based on the error that his DD Form 214 shows he was AWOL 470 days instead of only 335 days.  His DA Form 20 shows he was AWOL for a total of 470 days.  Even if the number of days of lost time was in fact 335 or a similar number of days, such an excessive amount of lost time would have resulted in the applicant being charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge.  

4.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  He consulted with counsel and he was advised of the contemplated trial by court-martial for his offense.  Only then did he voluntarily, in writing, request 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.
5.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The record contains no indication of procedural or other errors that would tend to jeopardize his rights. Furthermore, his overall military service was tarnished by various types of misconduct including one instance of NJP, one instance of a court-martial, and multiple instances of AWOL.

6.  Although he was granted a clemency discharge, the clemency discharge did not affect the underlying discharge and did not entitle the member to any benefits administered by the VA.

7.  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 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 Number AR20100027548, dated 26 May 2011.



      _______ _   _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)                                         AR20110013896



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ABCMR Record of Proceedings (cont)                                         AR20110013896



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