IN THE CASE OF:	  

		BOARD DATE:	  15 January 2013

		DOCKET NUMBER:  AR20120010203 


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 for correction of his military records by upgrading his undesirable discharge to general, under honorable conditions.

2.  The applicant states, in effect, that all of the evidence he presented was not considered by the Board.  He makes the following arguments concerning the indicated portion of the original Record of Proceedings (ROP), dated 28 April 2011:

	a.  Paragraph 6, Consideration of Evidence:  The applicant contends that when he made the statements quoted in this paragraph, he had been under extreme duress.  Alcohol is a drug.  He had already told his command at his nonjudicial punishment (NJP) hearing about his alcohol and drug use; hence, his being harassed and punished.  He further argues that he did not have any of these problems when he enlisted.  The Army should have some of the responsibility for his problems.  It was the Army who allowed alcohol vending machines in the barracks so Soldiers could have alcohol 24 hours a day - everyday.  When the Army finally recognized this error and removed them from the barracks, it was too late for him.  He was already a victim.

	b.  Paragraphs 2 and 3, Discussion and Conclusions:  The applicant contends that he did mention his alcohol use.  He asked for help after his first absence without leave (AWOL).  He accepted the NJP but received no help for his problems.

	c.  The applicant also states that he had enlisted in the Army in 1972 to serve his country.  He had even volunteered to go overseas to the Republic of Vietnam (RVN), as indicated in Item 42 (Remarks) of his DA Form 20 (Enlisted Qualification Record).  He served for 17 months and had injuries that led to his drug problems.  He shamefully took an undesirable discharge because of the threat of serving time in prison at Fort Leavenworth, Kansas.

	d.  The applicant further states that he has problems in life now because of alcohol, which is a drug.  Nevertheless, he has never given up seeking help for his problems.  Recovery is a lifetime issue.  He has also never given up his allegiance to the United States of America.

3.  The applicant provides copies of:

* DA Form 20, page 4 only, reviewed 26 June 1972
* Certificate of Achievement, dated 7 June 2000
* Certificate, Anger Management Program, dated 13 December 2000
* News Article, The South Hill Enterprise, Veterans Give Back,              dated 22 December 2002
* Certificate of Recognition, Resident of the Week, Lifeline Therapeutic Community, dated 24 January 2003
* Certificate of Participation, "LVCC" Veterans Group, dated 13 March 2003
* Certificate, Anger Management Program, dated 22 August 2003
* Certificate of Achievement, Substance Abuse, dated 30 December 2003
* Certificate of Completion, Lawrenceville Correctional Center, All Phases of Treatment, dated 30 January 2004
* Certificate of Attendance, The Haynesville "Veterans Outreach Group", dated May 2008
* Letter of support from a retired special forces sergeant major,                dated 19 July 2012
* Progress Letter from Senior Addictions Treatment Counselor, New Hope Therapeutic Community, to the Board of Parole, State of Virginia, undated

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 AR201000025385, on 28 April 2011.



2.  The applicant presents arguments pertaining to certain portions of the original ROP that should be considered as new evidence requiring consideration by the Board.  Furthermore, the applicant's documentary evidence was not clearly stated in his original application.  Therefore, all of the documents submitted by the applicant in this request for reconsideration will be considered as new evidence.

3.  In the original ROP, the applicant requested that his undesirable discharge be upgraded to honorable because he was a good Soldier.

	a.  The ROP states that during his initial training his conduct and efficiency were rated as “excellent”; however, as soon as he was assigned to a permanent unit, those ratings dropped to “good” and then to “unsatisfactory.”

	b.  The applicant had accepted NJP for being AWOL in June 1973.  In June 1974, he was also facing court-martial charges for being AWOL from August 1973 to May 1974.  The applicant requested an administrative discharge in lieu of the court-martial, which was approved.

	c.  The applicant had provided medical records showing he had been injured on three occasions and was given treatment that included medication for pain.  Based on this medical evidence, the Board did not agree with the applicant's contention that he had to resort to alcohol to manage his pain.  Furthermore, the Board noted the applicant's argument that harassment had turned him to drug use; that he had family problems; and the command was prejudiced against him.  There is no mention in the applicant's request for discharge concerning the use of alcohol or being in pain.

	d.  Based on his 303 days of AWOL and unsatisfactory conduct and performance, the Board denied his request for an upgrade of his discharge.

4.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of that regulation provides, in part that, a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.



	b.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	c.  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.  

5.  Under the Uniform Code of Military Justice, the maximum punishment allowed for violation of Article 86, for AWOL of more than 30 days, is a dishonorable discharge and confinement for 1 year.

6.  To support his contentions in this case, the applicant has provided several documents:

	a.  DA Form 20, page 4, indicates he had elected as his preference an overseas assignment to the RVN.

	b.  Eight certificates dated between 2000 and 2008, recording his achievements, completion, and/or participation in various support groups, training programs, and treatment programs.

	c.  An article from the South Hill Enterprise, dated 22 December 2002, reporting that the applicant had been incarcerated at Southampton, Greensville, and Lunenburg and had 16 years yet to serve.

	d.  A letter of support, dated 19 July 2012, from a retired special forces sergeant major who states, in effect, that he has known the applicant for nearly 10 years.  While he could not say what led the applicant to be incarcerated, he did say that he had been a moving force by serving as a founding member of a veterans' group.  He can testify to the applicant's wholesome influence in his current situation and to his maturity and patience as the Virginia parole process became first cumbersome and then non-existent.  He asks that this Board review the applicant's circumstances from a more distant perspective and give him due consideration.



	e.  A letter to the Board of Parole, State of Virginia, undated, written by the senior Addictions Treatment Counselor, wherein the author states the applicant was in Phase II of the New Hope Therapeutic Community program.  He provided leadership as the senior coordinator for the program.  If granted parole, he wanted to be paroled to the Gemeinschaft Transition Home.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that all of the evidence he presented in his original request for an upgrade of his undesirable discharge to honorable was not given proper consideration by the Board.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The applicant's statement that he was under extreme duress and had not received any help for his alcohol and drug use is not supported by any documented evidence of record.  Furthermore, the applicant has not provided any such documentation with his request for reconsideration.

4.  A review of the applicant's documents, as provided with this reconsideration, clearly shows that he has worked hard to improve himself.  However, those accomplishments do not change the facts surrounding his discharge and are not sufficiently mitigating to warrant changing what the Army did in his case.

5.  In view of the above, the applicant's 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 AR20100025385, dated 28 April 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)                                         AR20120010203





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ABCMR Record of Proceedings (cont)                                         AR20120010203



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