IN THE CASE OF:	  

		BOARD DATE:  10 April 2012

		DOCKET NUMBER:  AR20110020145 


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 to upgrade his discharge.

2.  The applicant states:

* he was young and did not understand the consequences of his actions
* he should be given a second chance to serve his country
* he performed his job in a very honorable fashion
* his character of service prevents him from getting a Federal job with the Department of Veterans Affairs (VA)
* he was not offered rehabilitation

3.  The applicant provides the same previously-submitted certificates of achievement, college certificate of completion, training certificates, membership certificates, board certification certificates, college transcripts, and multiple letters of recommendation.

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 AR110001306, on 4 August 2011.

2.  The applicant submitted a new argument which was not previously considered by the Board.  Therefore, it is considered new evidence and as such warrants consideration by the Board.

3.  The applicant's records show he was born on 24 April 1962 and he enlisted in the Regular Army at 18 years of age on 16 February 1981.  He held military occupational specialty 95B (Military Police (MP)).

4.  His records indicate he received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) in December 1982.  However, a copy of this Article 15 is not available for review in this case.

5.  On 12 February 1983, at the inbound terminal of Frankfurt International Airport, the applicant was identified by German customs agents for inspection.  He elected to be inspected by U.S. MPs who found a bag containing marijuana in his possession.  The applicant attempted to escape but he was pursued and caught by the MPs. 

6.  On 3 March 1983, court-martial charges were preferred against him for one specification of breaking arrest and one specification of possessing marijuana.

7.  On 6 March 1983, he consulted with legal counsel who advised him 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 UCMJ, the possible effects of a request for discharge, and of the procedures and rights available to him.  Following consultation with legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.

8.  In his request for discharge, he indicated he was making the 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 lesser-included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge.  He further acknowledged he understood if his discharge request was approved 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 "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 7 March 1983, his immediate, intermediate, and senior commanders recommended approval of his discharge with the issuance of an under other than honorable conditions discharge.

10.  On 9 March 1983, the separation authority approved the applicant's request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, and directed that the applicant be reduced to the lowest enlisted grade and the issuance of an under other than honorable conditions discharge.  Accordingly, the applicant was discharged on 28 March 1983.

11.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) is incomplete.  However, it shows he was discharged on 28 March 1983 under other than honorable conditions in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  

12.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

13.  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.

	a.  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.

	b.  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.  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 was charged with the commission of an offense 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.  After consulting with counsel and being advised of his rights, 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.

2.  With respect to his arguments:

	a.  The applicant was age 18 at the time of enlistment and age 21 at the time he committed his offense.  However, there is no evidence the applicant's misconduct was caused by his age or that he was any less mature than other Soldiers who successfully completed their military service obligation.

	b.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for employment or other benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

	c.  Contrary to his argument that he was not offered rehabilitation, subsequent to consulting with legal counsel he indicated "I hereby state that under no circumstances do I desire further rehabilitation for I have no desire to perform further military service."

3.  Based on his overall record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, there is no basis for upgrading the applicant's 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 AR110001306, dated 4 August 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)                                         AR20110020145



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ABCMR Record of Proceedings (cont)                                         AR20110020145



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