IN THE CASE OF:	  

		BOARD DATE:	  13 June 2013

		DOCKET NUMBER:  AR20120020796 


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 an upgrade of his discharge.

2.  The applicant states after he "did his time in Sally Port," his discharge was supposed to be upgraded.

3.  The applicant provides:

* DA Form 20 (Enlisted Qualification Record)
* DD Form 214 (Report of Separation from Active Duty)

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 AC95-08200, on 11 October 1995.

2.  The applicant does not meet the two-tiered criteria for reconsideration in that his request is neither submitted within one year of the original decision nor does it contain any new evidence.  However, the original Record of Proceedings did not fully explain the reason for denial of his request.  Therefore, the Board will reconsider his request as an exception to policy.

3.  The applicant was inducted into the Army of the United States on 18 July 1969 and he held military occupational specialty 11B (Light Weapons Infantryman).

4.  On 2 February 1970, he was assigned to Vietnam.  He was assigned to the 62nd Transportation Company and then to the 321st Transportation Company.

5.  While in Vietnam, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on:

* 19 May 1970 for violating curfew and twice being apprehended by military police
* 16 September 1970 for failing to go at the time prescribed to his appointed place of duty

6.  On 17 December 1970, he departed Vietnam en route to Fort Benning, GA.  On 25 January 1971, he was assigned to the U.S. Army Infantry School at Fort Benning.

7.  On 26 January 1971, he departed his unit in an absent without leave (AWOL) status and on 17 February 1971, he was dropped from the rolls of the Army as a deserter.

8.  On 4 March 1976, he was apprehended by civil authorities for public intoxication and he was confined in a county jail in Millington, TN.  He appeared in court the next day and he was subsequently released to military control.  He was ultimately transferred to Fort Campbell, KY on 9 March 1976.

9.  On 17 March 1976, court-martial charges were preferred against him for one specification of AWOL from on or about 26 January 1971 to on or about 4 March 1976.

10.  On 19 March 1976, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel),
chapter 10, for the good of the service - in lieu of trial by court-martial.   In his request for discharge he indicated that:

* he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person
* he did not desire any further rehabilitation under any circumstances because he had no desire to perform further service
* he acknowledged he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions
* he acknowledged he understood that if the discharge request was approved he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration
* he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State law

11.  With his request, he submitted a personal statement wherein he stated he wanted out because he could not live his civilian life with this charge hanging over him.

12.  On 25 March 1976, his immediate and senior commanders recommended approval of the discharge with the issuance of an undesirable discharge.

13.  On 30 April 1976, consistent with the chain of command's recommendations, the separation authority (a major general) approved the applicant's request for voluntary discharge for the good of the service - in lieu of trial by a court-martial in accordance with Army Regulation 635-200, chapter 10, and directed the applicant be reduced to the private (PV1)/E-1 and furnished an Undesirable Discharge Certificate.

14.  On 27 April 1976, the applicant was accordingly discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by a court-martial with an undesirable discharge.  He completed
1 year, 7 months, and 28 days of total active service with 1,697 days of time lost. The DD Form 214 he was issued at the time shows he was awarded or authorized the National Defense Service Medal, Vietnam Service Medal, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

15.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 17 October 1977, after careful consideration of his military records and all other available evidence, the ADRB determined he was properly discharged and denied his petition for an upgrade of his discharge. 

16.  There is no evidence of record and the applicant did not provide any evidence that corroborates his contention that his discharge was supposed to be upgraded after he did his time in "Sally Port" (confinement).

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

	a.  Chapter 10 provides 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 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, an under other than honorable conditions discharge is normally considered appropriate.

	a.  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.

	b.  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 upgrade of his undesirable discharge was carefully considered; however, there is insufficient evidence to support his request.

2.  The applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

3.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.

4.  The Army does not have nor has it ever had a policy that provides for the automatic upgrade of a discharge based on the passage of time or under any other circumstances.  A discharge may be upgraded by the ADRB within its
15-year statute of limitations or this Board if either determines the discharge was improper or inequitable.  A review of this case reveals no evidence that suggests there was any error or injustice related to the applicant's separation processing.  Therefore, it is concluded his discharge was proper and equitable and it accurately reflects the applicant's overall record of service.

5.  In view of the foregoing, there is an insufficient evidentiary basis to support granting the applicant an honorable or a general discharge in this case.

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 AC95-08200, dated 11 October 1995.



      _______ _   _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)                                         AR20120020796



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ABCMR Record of Proceedings (cont)                                         AR20120020796



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