IN THE CASE OF:	  

		BOARD DATE:	  29 May 2012

		DOCKET NUMBER:  AR20110021654 


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 undesirable discharge to a general discharge.

2.  The applicant states, in effect, his first sergeant (1SG) told him he was being discharged for the good of service and if he signed the document it would be changed.  He contends that he was injured while in training and followed his 1SG's advice.  He states he was young and did not have any legal knowledge.  He adds that he was never absent without leave (AWOL).

3.  The applicant provides copies of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); a third-party statement; DA Form 3349 (Medical Condition - Physical Profile), dated 23 June 1970; Standard Form 513 (Clinical Record-Consult Sheet), dated 8 and 23 June 1970; and Medical Record - Progress Notes, dated 20 October 2011.

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 AR20110002761, on 4 August 2011.

2.  The applicant's Medical Record-Progress Notes, dated 20 October 2011, were not previously considered by the Board.  This document is new evidence which warrants consideration by the Board.  
3.  The applicant's third-party statement and DA Form 3349 were available and previously considered; therefore, they will not be further referenced in these Proceedings.

4.  The applicant was born on 23 October 1944 and he was inducted into the Army of the United States on 13 March 1968, at age 23.  Upon completion of initial entry training he was awarded military occupational specialty 11C (Mortarman).

5.  His DA Form 20B (Record of Court-Martial Conviction) shows he received three summary court-martial convictions for being AWOL, and two special court-martial convictions (one for unlawfully striking a person in the head with a bunk adapter and a second for being AWOL).

6.  His records also show he accepted nonjudicial punishment on four occasions for five specifications of being absent from his unit without authority. 

7.  On 30 December 1970, court-martial charges were preferred against him for one specification of being AWOL from 1 September to 19 December 1970.

8.  On 12 January 1971, he consulted with legal counsel and requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations).  He acknowledged in his request that he understood he might be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he would be deprived of many or all Army benefits, that he might be deprived of many or all benefits administered by the Veterans Administration, and that he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged he understood that he might expect to encounter substantial prejudice in civilian life due to the issuance of an undesirable discharge.

9.  On 17 February 1971, the separation authority approved his request for discharge and directed that he be reduced to the lowest enlisted grade and the issuance of an Undesirable Discharge Certificate.  He was discharged accordingly on 2 March 1971.  He completed 2 years and 29 days of total active service and accrued approximately 275 days of lost time.

10.  On 5 March 1979, the Army Discharge Review Board denied his request for an upgrade his discharge.



11.  The Medical Record-Progress Notes, dated 20 October 2011, the applicant provides show he complained of and was treated for lower back pain on 8 and
30 June 1970.  This document also outlines his treatment procedures for lumbar laminectomy (back pain).

12.  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 Veterans Administration benefits, and of the possibility of prejudice in civilian life due to 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.

13.  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's request for reconsideration of his previous case has been carefully considered.  

2.  The available evidence does not indicate the applicant was made any promises at the time of discharge.  Court-martial charges were filed against him and he voluntary requested a discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid a trial by court-martial.  His discharge proceedings were administratively correct and in conformance with applicable regulations.  There is no indication that his request was made under coercion or duress.

3.  His record of indiscipline includes five court-martial convictions, four nonjudicial punishments, and approximately 275 days of lost time.  Based on this record of indiscipline, his overall record of service did not support the issuance of a general discharge at the time and it does not support an upgrade of his discharge now.

4.  He contends that he was young at the time and had no legal knowledge; however, the available evidence shows he received legal counsel prior to requesting a discharge.  Additionally, he was age 23 at the time of induction and he completed initial entry training.  This shows he was mature enough to satisfactorily serve.  There is no evidence that he was any less mature than other Soldiers of the same age who successfully completed their military obligations.  

5.  He also contends that he was never AWOL; however, the available evidence shows he departed his unit in an AWOL status on multiple occasions and he was punished a number of times.  

6.  The Medical Record-Progress Notes that he provided outlines his treatment procedures for lumbar laminectomy.  This document does not show this condition contributed to the misconduct that led to his discharge, nor does it mitigate the misconduct that led to his discharge.

7.  In view of the foregoing, his request should be denied.

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 AR20110002761, 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)                                         AR20110021654



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110021654



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1