BOARD DATE:	  8 October 2013

		DOCKET NUMBER:  AR20130001293 


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 previous request for an upgrade of his under conditions other than honorable discharge to a general.  He further requests an honorable discharge.

2.  The applicant states according to a representative at a Department of Veterans Affairs Medical Center, he should have received an honorable discharge because of post-traumatic stress disorder (PTSD) and personal reasons due to being drafted into the service.  He did not have a court-martial.  

3.  The applicant provides copies of his August 1971 Article 15, page 3 of his DA Form 20 (Enlisted Qualification Record), and his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 AR20110021479 on 26 April 2012.  

2.  The applicant contends he was suffering from PTSD and personal problems at the time of his discharge; therefore, he should have received an honorable discharge.  This is considered new argument and will be considered by the Board.

3.  The applicant was inducted into Army of the United States on 29 April 1969.   He completed training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  

4.  On 28 July 1970, he was convicted by a special court-martial of being absent without leave (AWOL) from 29 September 1969 to 23 June 1970.  He was sentenced to confinement at hard labor for 4 months and a forfeiture of $88.00 pay per month for 4 months.

5.  On 5 August 1970, the convening authority approved his sentence and ordered it duly executed.  On 29 September 1970, the unexecuted portion of his sentence was remitted.

6.  He was advanced to pay grade E-3 on 7 December 1970.

7.  On 11 August 1971, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for being AWOL from 16 to 26 July 1971.  His punishment included reduction to pay grade E-2.

8.  On 16 November 1971, a DD Form 458 (Charge Sheet) was prepared by the Commander, Headquarters and Company A, Staff and Faculty Battalion, School Brigade, U.S. Army Ordnance Center and School.  The applicant was charged with one specification each of being AWOL from 28 September to 1 October 1971 and from 4 October to 14 November 1971.  

9.  On 16 November 1971, after consulting with counsel, the applicant requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 10, for the good of the service – in lieu of trial by court-martial.  He acknowledged he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate and the results of such a discharge.  He waived his rights and elected not to submit a statement in his own behalf.    

10.  On 9 December 1971, the Commander, Headquarters and Company A, Staff and Faculty Battalion, School Brigade, U.S. Army Ordnance Center and School, recommended approval of the applicant's discharge and the issuance of an Undesirable Discharge Certificate.  He stated the applicant was not considered to be mentally defective, deranged, or abnormal.  He also stated the applicant's repetitive and extensive nature of AWOL's, coupled with the attempts at rehabilitation, clearly established that the applicant was unsuitable for further military service.

11.  On 29 December 1971, the appropriate separation authority approved the applicant’s request under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of an Undesirable Discharge Certificate and reduction to pay grade E-1.

12.  On 14 January 1972, he was discharged accordingly.  He completed 1 year, 5 months, and 25 days of net active service with 446 days of time lost.

13.  On 21 November 1986, the Army Discharge Review Board denied his request for an upgrade of his discharge.

14.  On 12 April 2012, the ABCMR denied his request for an upgrade of his discharge to a general discharge.  

15.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulation stated in:

   a.  Chapter 10, a Soldier whose conduct rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge could request a discharge for the good the service in lieu of a trial.  The regulation required that there have been no element of coercion involved in the submission of such a request and that the applicant was provided an opportunity to consult with counsel.  The Soldier was required to sign the request indicating he understood he could receive a discharge under other than honorable conditions, the adverse nature of such a discharge, and the possible consequences thereof. The regulation required that the request be forwarded through channels to the general court-martial convening authority.  An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

   b.  Paragraph 3-7a states an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

	c.  Paragraph 3-7b states a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, established the Army Physical Disability Evaluation System and set forth policies, responsibilities, and procedures that applied in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request and contention for an upgrade of his discharge was carefully considered.  However, the evidence of record shows upon return from periods of AWOL and after consulting with counsel, he voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  He also acknowledged he could be furnished an Undesirable Discharge Certificate.  As a result, on 14 January 1972, he was discharged accordingly.

2.  There is an absence of evidence to support his contentions he was suffering from PTSD at the time.  His commander stated he was not considered to be mentally defective, deranged, or abnormal.  He also stated the applicant's repetitive and extensive nature of AWOL's, coupled with the attempts at rehabilitation, clearly established that the applicant was unsuitable for further military service.  He acknowledged the reason for his separation. He did not mention any medical or personal problems he was experiencing and it appears he was medically cleared for separation.

3.  There is no evidence of record showing any undiagnosed medical conditions or personal problems prevented his satisfactory completion of his period of service.  In the absence of evidence to the contrary it appears his administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  

4.  He was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharge actions processed under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  He waived his opportunity to appear before a court-martial to prove his innocence.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

5.  His misconduct diminished the quality of his service below that meriting a fully honorable discharge and he has submitted neither probative evidence nor a convincing argument that shows his discharge was inequitable and he now warrants an upgrade to a general or a fully honorable discharge.  He was properly separated for misconduct, commission of a serious offense.

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant a general or a fully honorable 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 the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20110021479, dated 26 April 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)                                         AR20130001293





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ABCMR Record of Proceedings (cont)                                         AR20130001293



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