BOARD DATE:	  31 January 2013

		DOCKET NUMBER:  AR20120009262 


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 under other than honorable conditions (UOTHC) discharge to a general discharge (GD).

2.  The applicant states:

   a.  upon completion of his Reserve two week annual training, he returned home and learned his wife was running around on him and drinking a lot;
   
   b.  he missed too many drills attempting to keep track of his wife which led to his decision to enlist in the Regular Army (RA) instead of going to Fort Leavenworth, Kansas, when he was given those two options;
   
   c.  although he was told he would keep his rank of private first class
(PFC/E-3) and would not have to repeat basic and advanced individual training (AIT), he discovered these conditions were lies and upon completion of this repeat training, his Stetson hat that he loved, valued at $300.00 was stolen from his civilian belongings;

   d.  he was denied sufficient leave and in a timely manner to attend the birth of his son prior to reporting to Germany and he was told he could not afford dependent travel to his oversea assignment due to his rank;
   
   e.  finally, because nothing went as he was told or planned, being extremely confused and disillusioned, he did not return to duty, departed absent without leave (AWOL), which resulted in his UOTHC discharge; and
   f.  he wishes he could do it all over again and asks reconsideration be given to upgrade his discharge.

3.  The applicant provides:

* Self-authored statement
* Missouri Veterans Commission Letter
* Behavioral Health Care – Rural/Progress Notes (24 pages)

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 AR2011005803 on 6 October 2011.

2.  During its original review of this case, the Board determined:

	a.  The applicants voluntary request for separation for the good of the service to avoid trial by court martial was administratively correct and in conformance with applicable regulations.  He was afforded the opportunity to assert his innocence through trial by court-martial but declined with the hopes of avoiding a punitive discharge with a felony conviction on his record.  In doing so, he admitted guilt.  The type of discharge directed and the reasons were appropriate considering all the facts of his case.

	b.  His contentions that his misconduct was caused by the loss of his mother at an early age; and by the abuse he suffered by his step mother in the absence of his father, was determined insufficient to warrant the requested relief under the circumstances in his case.

3.  The applicant provides new argument.  He contends his UOTHC discharge should now be upgraded because of the unfulfilled promises made to him upon his enlistment in the RA; his wife's infidelity; and his possible unaccompanied oversea tour, all of which had left him confused and disillusioned.  This formed the basis for his AWOL offense resulting in his discharge.

4.  The applicant’s record shows he initially served in the United States Army Reserve (USAR) from 31 March 1977 to 7 August 1979.  He completed 1 year and 11 Months of total inactive military service.

5.  His Army Military Human Resource Record (AMHRR) contains a DD Form 4 (Enlistment or Reenlistment Agreement) which shows he enlisted in the RA on 8 August 1979, in the rank of private (PVT/E-1).  He authenticated this document with his signature confirming the information thereon.

6.  On 22 January 1980, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) for being AWOL from on or about 18 November through 26 December 1979.

7.  On 22 January 1980, 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 an UOTHC discharge, and of the procedures and rights that were available to him.  Subsequent to this counseling, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge.

8.  In his request for discharge the applicant acknowledged his understanding that he would be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also indicated that he understood he could face substantial prejudice in civilian life because of his UOTHC and he elected not to submit a statement on his own behalf. 

9.  On 11 February 1980, the separation authority approved the applicant’s request for discharge and directed that he receive an UOTHC discharge under the provisions of chapter 10, Army Regulation 635-200.  On 25 February 1980, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he completed a total of 5 months and 11 days of creditable active military service and he accrued a total of 38 days of time lost due to AWOL.

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

11.  The applicant provides twenty-four pages of behavioral health care progress notes that details the treatment he received for medical diagnosis that include major depression, post traumatic stress disorder and chronic pain from 19 August 2010 through 10 November 2011.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his request for reconsideration to upgrade his UOTHC discharge to an GD should be approved.

2.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge and after consulting with defense counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  It further confirms that his separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process.  As a result, there remains an insufficient evidentiary basis to support an upgrade of his discharge.

3.  The applicant’s contention that his UOTHC discharge should now be upgraded because of the unfulfilled promises made to him upon his enlistment in the RA; his wife's infidelity; and his possible unaccompanied oversea tour was the reason for his AWOL offense was considered and found not substantiated in the record.  Additionally, this information is considered insufficient to support an upgrade of a proper discharge.

4.  Further the record confirms the applicant consulted with legal counsel and was fully advised of the basis for the contemplated court-martial action against him and of his rights in connection with that action.  He also indicated that he understood he could face substantial prejudice in civilian life because of his UOTHC discharge and subsequent to receiving this legal counsel, he voluntarily requested discharge in order to avoid a trial by court-martial that could have resulted in his receiving a punitive 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 AR20110005803 dated 6 October 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)                                         AR20120009262





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ABCMR Record of Proceedings (cont)                                         AR20120009262



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