IN THE CASE OF:	  

		BOARD DATE:	  13 December 2012

		DOCKET NUMBER:  AR20120009216 


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 request for upgrade of his under other than honorable conditions (UOTHC) discharge to a general discharge under honorable conditions.

2.  The applicant states he served in the U.S. Army from 1975 to 1978 and he is a Vietnam-era veteran.

   a.  He went absent without leave (AWOL) a couple of times during the period of his military service because he was experiencing extensive marital and family problems that eventually ended in divorce.  At the time, he requested leave; however, his officer in charge denied his request.

   b.  He adds that it was unjust for the Army to deny him the opportunity to take care of family matters and he continues to suffer the effects of a bad discharge.

3.  The applicant provides no additional documentary evidence in support of his request for reconsideration.

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 AR20110019032, on 13 March 2012.

2.  The applicant enlisted in the Regular Army on 11 June 1975 for a period of
3 years.  He was awarded military occupational specialty 13B (Cannon Crewman).

3.  The applicant received nonjudicial punishment for his misconduct on two occasions (i.e., 6 May 1977 and 19 October 1977) for:

* being AWOL from 29 January through 10 March 1977
* failing to go to his appointed place of duty and being derelict in the performance of duty

4.  On 26 April 1978, court-martial charges were preferred against the applicant for being AWOL from 5 December 1977 to 22 April 1978.

5.  The applicant consulted with legal counsel and he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge.

	a.  He was advised that he might be discharged under other than honorable conditions, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration, that he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he might expect to encounter substantial prejudice in civilian life if he was issued an under other than honorable discharge.

	b.  He was also advised that he could submit any statements he desired in his own behalf; however, he declined to do so.

	c.  The applicant and his counsel placed their signatures on the document.

6.  The applicant's immediate and intermediate commanders recommended approval of the request for discharge with a UOTHC Discharge Certificate.

7.  The separation authority approved the applicant's request for discharge and directed the issuance of a UOTHC Discharge Certificate.

8.  The applicant's DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 11 May 1978 in accordance with Army Regulation 635-200 (Enlisted Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial with a UOTHC Discharge Certificate.

   a.  He had completed 2 years, 4 months, and 18 days of net active service.
   b.  He had 207 days of time lost.

9.  A review of the applicant's military service records failed to reveal any evidence that he applied for a compassionate reassignment or a hardship discharge based on personal/family matters.

10.  A review of the applicant's military personnel records failed to reveal any evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

   a.  Chapter 10 provides that a member who 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, at the time the applicant was discharged a UOTHC discharge was considered appropriate.

   b.  Chapter 3, 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 that his UOTHC discharge should be upgraded because he was experiencing personal/family problems and he was denied leave, but he went home anyway.

2.  There is no evidence of record, and the applicant provides insufficient evidence, to show he was denied leave by his supervisor or commander.  In addition, he would not have been granted leave for much more than 30 days; he was AWOL for 207 days.  Moreover, there is no evidence that shows he requested a compassionate reassignment or hardship discharge in an effort to resolve his personal/family problems.  

3.  The applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Considering all the facts of the case, the reason for his separation and characterization of his service were appropriate and equitable.

4.  The applicant elected to request discharge in lieu of being court-martialed, he had 207 days (i.e., almost 7 months) of time lost, and he completed less than
2 years and 5 months of his 3-year enlistment obligation.  Thus, the applicant's service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to a general discharge.

5.  In view of the foregoing, there is no basis for granting the requested relief.

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 AR20110019032, dated 13 March 2012.




      _______ _   _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)                                         AR20120009216



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ABCMR Record of Proceedings (cont)                                         AR20120009216



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