IN THE CASE OF:	  

		BOARD DATE:  4 January 2013

		DOCKET NUMBER:  AR20120010932 


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 upgrade of his under other than honorable conditions discharge to an under honorable conditions (general) discharge.  (He had previously requested upgrade of his discharge to fully honorable; an upgrade to a general discharge was not considered at that time.)

2.  The applicant states he served in the Gulf War.  The experience affected his mental condition and decision-making ability, which he offers as new argument. He adds that he did not pre-plan his absence without leave (AWOL).

   a.  He states he had a distinguished service record prior to the incident.

   b.  He also states that his military medical treatment records have been misplaced.  He is being treated by the Department of Veterans Affairs (VA) and has been granted a disability rating of 10%.

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 ABCMR in Docket Number AR20100026860, on 19 May 2011.

2.  The applicant enlisted in the Regular Army (RA) on 7 July 1982.  He was awarded military occupational specialty 19D (Cavalry Scout).  He continued to serve on active duty, reenlisting in the RA on 19 February 1986, 3 September 1991, and 5 June 1995.

3.  He was promoted to staff sergeant/pay grade E-6 effective 1 October 1988.

4.  He had overseas service, as follows:

* Germany from 7 March 1987 through 7 March 1990
* Saudi Arabia from 1 October 1990 through 18 March 1991
* Germany from 21 January 1992 through 13 January 1993
* Korea from 12 January 1999 through 12 August 1999

5.  Court-martial charges were preferred against the applicant for being AWOL from 13 August 1999 to on or about 21 February 2000.

6.  The applicant consulted with legal counsel and he voluntarily requested discharge 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 also advised that he could submit any statements he desired in his own behalf; however, he declined to do so.

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

7.  The applicant's commander recommended approval of the applicant's request for discharge with service characterized as under other than honorable conditions.

8.  The separation authority approved the applicant's request for discharge and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

9.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he entered active duty this period on 7 July 1982 and he was discharged on 8 May 2001 in accordance with Army Regulation 635-200 (Enlisted Separations - Enlisted Personnel), chapter 10, in lieu of trial by court-martial with an under other than honorable conditions discharge.

   a.  He completed 18 years, 3 months, and 20 days of net active service.

   b.  He had 192 days of time lost from 18 August 1999 - 20 February 2000.
   c.  Item 18 (Remarks) shows (in part) he had continuous honorable active service from 7 July 1982 through 4 June 1995 and that he had immediate reenlistment during this period, as follows:  7 July 1982 through 18 February 1986, 19 February 1986 through 2 September 1991, and 3 September 1991 through 4 June 1995.

10.  On 6 October 2010, the applicant submitted a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) to the Army Discharge Review Board (ADRB) requesting an upgrade of his discharge.  The ADRB determined the applicant's discharge was proper and equitable.  Accordingly, the applicant's request was denied and he was notified of the ADRB's decision.

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

   a.  Chapter 10 shows that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge 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, a discharge under other than honorable conditions is normally 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's request was carefully considered.

2.  The applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, 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.

3.  Item 18 of the applicant's DD Form 214 correctly shows his continuous honorable active service from 7 July 1982 through 4 June 1995.

4.  There is no evidence of record and the applicant provides insufficient evidence (e.g., medical treatment records, professional medical opinion, etc.) in support of his contention that his Gulf War experience (in 1990 - 1991) affected his mental condition and decision-making ability, and that it caused him to go AWOL on 13 August 1999.

5.  The applicant was AWOL from 13 August 1999 through 20 February 2000 and he elected to request discharge in lieu of being court-martialed.

   a.  He had 192 days of time lost.

   b.  Thus, the applicant's service during the period of service under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an under honorable conditions (general) discharge.

6.  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 for correction of the records of the individual concerned.




      _______ _  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)                                         AR20120010932



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ABCMR Record of Proceedings (cont)                                         AR20120010932



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