IN THE CASE OF:	   

		BOARD DATE:	  12 April 2012

		DOCKET NUMBER:  AR20110018198 


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 an earlier request to upgrade his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states, in effect:

* A mistake was made because the sanctions/punishments of his two
Article 15 convictions were never carried out 
* He was not present for duty when the punishments were imposed
* On 1 October 1980 the unit commander at Fort Dix, NJ stated he was not to be court-martialed and confinement was not warranted in view of the nature of the offense
* He was improperly discharged from the Army and without proper reason

3.  The applicant provides no documentary 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 AR20100000585, on 6 July 2010.

2.  His contentions are new arguments that warrant consideration by the Board.
3.  The applicant enlisted in the Regular Army on 4 March 1980 and he was trained in and awarded military occupational specialty (MOS) 51B (Carpentry and Masonry Specialist).

4.  On 30 May 1980, nonjudicial punishment (NJP) was imposed against the applicant under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for being derelict in the performance of his duty on 27 April 1980 and for disobeying a lawful order from a noncommissioned officer (NCO) on 27 April 1980.  He acknowledged receipt of the Article 15 on 30 May 1980.  On the same day, punishment was imposed consisting of a forfeiture of $224.00 pay per month for 2 months and correctional custody for 14 days.  He was advised of his right to appeal the punishment within 7 days to the next superior authority.  On
5 January 1980, under his signature, the applicant elected not to appeal the punishment.

5.  On 6 June 1980, NJP under Article 15, UCMJ was imposed against the applicant for being absent without leave (AWOL) from on or about 30 April until on or about 23 May 1980.  He acknowledged receipt of this Article 15 on 6 June 1980.  On the same day, punishment was imposed consisting of a reduction to
private (PV1)/E-1, forfeiture of $224.00 pay per month for 2 months, and correctional custody for 30 days.  He was advised of his right to appeal the punishment within 7 days to the next superior authority.  On 13 June 1980, under his signature, the applicant elected not to appeal the punishment.

6.  On 19 September 1980, charges were preferred against him for three specifications of being AWOL from on or about 10 June 1980 until on or about
2 August 1980; from on or about 5 through 22 August 1980; and from on or about 22 August until on or about 17 September 1980.

7.  On 19 September 1980, he consulted with legal counsel and he was advised of the basis for his contemplated trial by court-martial and the maximum permissible punishment authorized under the UCMJ.  He was also informed of the possible effects of an under other than honorable conditions discharge and of the rights and procedures available to him.  After receiving legal counsel, the applicant 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.

8.  In his request for discharge, the applicant acknowledged he understood if his request for discharge were approved, he could receive an under other than honorable conditions discharge.  He further stated he understood that receipt of an under other than honorable conditions discharge could result in his being 


deprived of many or all Army benefits, his possible ineligibility for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under State and Federal laws.  He elected not to make a statement in his own behalf.

9.  On 1 October 1980, the unit commander at Fort Dix recommended approval of the applicant's request for discharge and that the applicant be issued an Under Other Than Honorable Conditions Discharge Certificate.  He further states:

	a.  "In my opinion, this SM [service member] has no motivation for continued service, and will not respond to either counseling or rehabilitation."

	b.  "SM is pending a trial for an offense punishable by a Bad Conduct or Dishonorable Discharge.  The administrative burdens involved in the court-martial and possible confinement are not considered warranted in view of the nature of the offense."

10.  On 9 October 1980, the separation authority approved the applicant's request for discharge and directed the applicant be issued an Under Other Than Honorable Conditions Discharge Certificate.  On 14 November 1980, the applicant was discharged accordingly.  He completed 4 months and 11 days of net active service during the period with 116 days of time lost due to being AWOL.

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

12.  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.

13.  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.

14.  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 a mistake was made because the sanctions/
punishments of his two Article 15 convictions were never carried out.  It appears the two periods of correctional custody imposed on 30 May 1980 (14 days) and
6 June 1980 (30 days) were not carried out because he went AWOL on or about 10 June 1980.

2.  Although he contends he was not present for duty when the Article 15 punishments were imposed, he signed the DA Forms 2627 on 30 May 1980 and 6 June 1980.

3.  His contention the unit commander at Fort Dix stated he was not to be court-martialed and that confinement was not warranted in view of the nature of the offense was noted.  However, his unit commander stated:

* he was pending trial for an offense punishable by a bad conduct or a dishonorable discharge
* the administrative burdens involved in the court-martial and possible confinement are not considered warranted in view of the nature of the offense
* he recommended approval of the applicant's request for discharge and that an under other than honorable conditions discharge be issued  

4.  He contends he was improperly discharged from the Army and without proper reason.  However, evidence shows he voluntarily requested discharge in lieu of trial by court-martial for three AWOL periods.

5.  His record of service included two NJPs and 116 days of time lost.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.


6.  His voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

7.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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 AR20100000585, dated 6 July 2010.



      _______________________
               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)                                         AR20110018198



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ABCMR Record of Proceedings (cont)                                         AR20110018198



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