IN THE CASE OF:	  

		BOARD DATE:	    8 January 2013

		DOCKET NUMBER:  AR20120010785 


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 an earlier request for an upgrade of his undesirable discharge.

2.  The applicant states he enlisted in the Army to serve his country and to get an education.  He was stationed at Fort Hood, TX and he began attending college and had a 3.5 grade point average.  He then received orders for Germany.  Because he was in school, he asked his sergeant for help in order to stay at Fort Hood, TX but his company commander declined to help because his sergeant would not support an extension.  He contends that while in Germany, he was assigned to work on portable generators for which he had no experience.  He asked his commander to place in him in a slot where he was qualified or send him to school but the commander declined.  He was the only person assigned to work on portable generators and there was no one to learn from and the manuals were incomplete.  He was also devastated due to not being able to finish his education in Texas.

3.  The applicant states that it is true he received nonjudicial punishment on two occasions and he accepts responsibility for them.  He contends that although he had these two lapses, he was considered a good and reliable Soldier by his chain of command.  He continues that when he was behind bars for the first time in his life, he was scared to death and he listened to anyone he thought could help him.  He had hoped that by hiring a civilian lawyer he had a better chance but instead of the lawyer fighting for him, he talked him into accepting a chapter 10 which was not in his best interest.  He concludes that after his discharge, he did his best to live an exemplary life and succeeded raising five children.  
4.  The applicant provides 10 third-party character reference letters.

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 AR20110013432 on 5 January 2012.

2.  The applicant provides 10 third-party character reference letters which were not reviewed in the previous Record of Proceedings.  Therefore, the letters are considered new evidence which warrant consideration by the Board.  

3.  The applicant enlisted in the Regular Army on 28 September 1972 and he was awarded military occupational specialty 51A (Construction and Utilities Worker) upon completion of initial entry training.  

4.  In the previous Record of Proceedings it was noted that:

	a.  He accepted nonjudicial punishment under the provisions of the Uniform Code of Military Justice (UCMJ) on 3 August 1973, for being absent from his unit without authority and on 24 December 1974, for absenting himself from his place of duty without authority.  

	b.  Court-martial charges were preferred against him on 9 January 1975 for four specifications of violating lawful general regulations by operating a vehicle without a valid driver's license and by wrongfully possessing controlled substances and for two specifications of wrongfully possessing heroin and marijuana. 

	c.  On 27 February 1975, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial and the maximum punishment authorized under the UCMJ; of the possible effects of an undesirable discharge; and of the rights available to him.  Subsequent to receiving the legal advice, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separation - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-marital.  

	d.  In his request for discharge, he acknowledged he was making the request of his own free will and he had not been subjected to any coercion whatsoever by any person.  He also acknowledged that he had been advised of the implications attached to his request and that he was admitting guilt of the charges against him or of a lesser-included offense which also authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged that he could be furnished an Undesirable Discharge Certificate and he could be ineligible for many or all benefits administered by the Veterans Administration, he could be deprived of many or all Army benefits, and he could be ineligible for many or all benefits as a veteran under both Federal and State laws.  He further acknowledged that he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.  He also elected not to submit statements in his own behalf.  

	e.  The separation authority approved his request for discharge on 17 March 1975 and directed his reduction to the lowest enlisted grade and the issuance of an Undesirable Discharge Certificate.  On 24 March 1975, he was discharged accordingly.

	f.  On 13 October 1981, the Army Discharge Review Board determined his discharge was proper and equitable and it voted unanimously to deny his request for an upgrade of his discharge

5.  The 10 third-party character reference letters provided by the applicant attest to his positive post-service conduct and accomplishments as a citizen and as a family man.  

6.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  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 the possibility of prejudice in civilian life because of 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.

   	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, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for a discharge upgrade has been carefully considered.

2.  The available evidence shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  His record shows that after consulting with legal counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  In his request, he admitted guilt to the charge against him or of a lesser-included offense that also authorized the imposition of a bad conduct or dishonorable discharge.

3.  His voluntary 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 administratively correct and in conformance with applicable regulations.  There is no indication the request was made under coercion or duress.

4.  His post-service conduct and accomplishments are noted; however, based on the offenses he was accused of and in view of the fact he voluntarily, willingly, and in writing requested discharge to avoid a court-martial that could have resulted in a punitive discharge, his overall record of service did not support the issuance of an honorable or general discharge by the separation authority at the time and it does not support an upgrade of his discharge now.

5.  In the absence of evidence showing his discharge proceedings were in error or unjust, the third-party character reference letters provided are insufficient evidence on which to base granting the requested relief.  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 AR20110013432, dated 5 January 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)                                         AR20120010785



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ABCMR Record of Proceedings (cont)                                         AR20120010785



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