IN THE CASE OF:	  

		BOARD DATE:	    20 March 2012

		DOCKET NUMBER:  AR20110019667


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 discharge (GD).

2.  In his initial request the applicant stated he was falsely accused.  He indicates the Board was unaware of all of the facts in his case and states:

	a.  he was initially drafted into the Army as a Canadian and received an honorable discharge on 2 August 1970;

   b.  he subsequently enlisted in the Army and received a UD;
   
   c.  as a result of his initial period of honorable service he received veterans service medical benefits for some time until he retired in Arizona, and while seeking a local Department of Veterans Affairs (VA) facility, he was informed he never should have received any benefits;
   
   d.  he admits to departing in an absent without leave (AWOL) status while serving as a military policeman (MP);
   
   e.  under his watch, some officers were arrested for black marketing and their ranks were accidentally included in the "wired in" information which should not have happened;
   
   f.  although he did not include the officer's ranks in the information, he was in charge, ultimately responsible, held accountable, and took responsibility for this action;

   g.  he was subsequently placed in a life-threatening situation when he was reassigned to an infantry unit where he would have to encounter the arrested officers and as a result he departed AWOL because he felt he was backed into a corner, scared, and did not know what else to do;

   h.  several months after he was arrested and returned to military control he departed AWOL a second time in an effort to return home to provide financial support to his family because he was having problems getting paid by the Army;

   i.  in an attempt to do the right thing he turned himself in and he was given the option to either appear before a court-martial, which could take some time, or he could be discharged from the Army.  He chose to be discharged because his main priority was to go back home to support his wife and children; and
   
   j.  he was young and made some hasty choices not knowing how he would be affected later.

3.  The applicant provides a self-authored statement.

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 AR20100009058, on 26 August 2010.

2.  During the Board's original review of this case it was determined:

	a.  The applicant's contention he was falsely accused relates to evidentiary and legal matters that could have been addressed and conclusively adjudicated in a court-martial appellate process.  However, the applicant voluntarily requested discharge in lieu of court-martial and in doing so, he, in effect, admitted he was guilty of being AWOL;

   b.  The applicant's separation 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 was administratively correct and in conformance with applicable regulations;

	c.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case; and

	d.  The applicant's second enlistment included 745 days of AWOL making this service unsatisfactory, unable to meet the standards of acceptable conduct and performance of duty for Army personnel, and insufficiently meritorious to warrant an honorable or general discharge.

3.  The applicant’s record shows that having honorably served one prior period of active service from 22 October 1968 through 2 August 1970, he reenlisted in the Regular Army on 3 August 1970.  He held and served in military occupational specialty 95B.

4.  His DA Form 20 (Enlisted Qualification Record) shows he accrued 475 days of lost time that included the following three periods:

* 27 February - 26 March 1973	(29 days)
* 27 March - 14 April 1973		(18 days)
* 22 May 1973 - 24 July 1974 	(429 days)

5.  On 30 July 1974, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the UCMJ (twice) for being AWOL from on or about 27 February - 15 April 1973 and from on or about 22 May 1973 - 25 July 1974.

6.  On 5 August 1974, 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 a UD, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).

7.  In his request for discharge the applicant acknowledged he understood he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the VA, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also indicated he understood he could face substantial prejudice in civilian life if he were issued a UD.

8.  On 9 August 1974, the separation authority approved the applicant's request for discharge and directed that he be discharged under the provisions of Army Regulation 635-200, chapter 10, with a UD.
9.  On 22 August 1974, the applicant was discharged accordingly in the lowest enlisted rank of private/E-1.  His DD Form 214 shows he completed a total of 
2 years, 8 months, and 29 days of active military service for the period covered.

10.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

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

	a.  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 discharge (HD) or GD is authorized, at the time a UD was normally considered appropriate.

	b.  Paragraph 3-7a provides that an HD 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.

	c.  Paragraph 3-7b of 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 HD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his UD should be upgraded.  However, he admits to departing AWOL (twice) during his last period of active service and that subsequent to self-return to active duty he elected to be discharged from the Army in lieu of court-martial because his main priority at the time was to take care of his wife and children.

2.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge for being AWOL 475 days.  After consulting with defense counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.

3.  The applicant’s separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  As a result, there remains an insufficient evidentiary basis to support an upgrade of his discharge.

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

5.  The evidence of record does confirm the applicant served on active duty from 22 October 1968 to 2 August 1970, for which he received an honorable characterization of service.  It appears it may be his intent to upgrade his discharge from his second enlistment to qualify for VA medical benefits.  He may still qualify for medical benefits for any medical condition that arose out of his first enlistment.  However, the Army has no jurisdiction over the VA; therefore, he should contact the VA to inquire into any benefits that he may be due as a result of his first, honorable period of service.

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 AR20100009058, dated 26 August 2010.




      _______ _   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)                                         AR20110019667



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