IN THE CASE OF:	  

		BOARD DATE:	  5 March 2014

		DOCKET NUMBER:  AR20130011286 


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 under other than honorable conditions discharge.

2.  The applicant states he had a medical problem while on leave and upon his return, he was jailed.  He was told at the separation point that he could receive an upgrade.  He believes that a man does not know how long he may have on this earth but this is something he needs to get straight before he leaves. 

3.  The applicant does not provide any evidence. 

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 AC83-05732, on 1 June 1983.

2.  The applicant does not meet the two-tiered standard for reconsideration in that his request is more than 1 year after the Board's original decision and the applicant failed to provide any new substantial evidence; however, in its original Record of Proceedings, the Board did not fully explain his discharge process.  His request is now being reconsidered by the Board as an exception to policy.

3.  The applicant enlisted in the Regular Army on 3 October 1975.  Upon completion of basic combat training, he was reassigned to another unit at Fort Dix, NJ, for completion of advanced individual training.  

4.  On 5 January 1976, he departed his training unit in an absent without leave (AWOL) status.  However, he returned on 15 January 1976.  

5.  On 9 February 1976, he again departed his unit in an AWOL status and on 9 March 1976, he was dropped from the rolls as a deserter.  He surrendered to military authorities at Fort Dix, NJ, on 23 May 1976. 

6.  On 24 May 1976, his command preferred court-martial charges against him for two specifications of AWOL from 5 to 16 January 1976 and 29 February to 23 May 1976.

7.  On 24 May 1976, the applicant 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 Uniform Code of Military Justice (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 voluntarily 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.

8.  In his request for discharge he indicated he was making the request of his own free will and he had not been subjected to any coercion by anyone.  He also acknowledged he understood that if his discharge request were approved, he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He further understood that if such discharge were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also elected not to submit a statement in his own behalf. 

9.  On 2 June 1976, his immediate and intermediate commanders recommended approval of the applicant's discharge with the issuance of an Undesirable Discharge Certificate.  The immediate commander noted that the applicant had been medically examined and was found qualified for separation.  He also stated there did not appear to be any reasonable grounds to believe the applicant was at the time of his misconduct mentally defective, deranged, or abnormal. 
10.  On 7 June 1976, the separation authority approved the applicant's request for discharge in accordance with Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial, and directed the issuance of an Undesirable Discharge Certificate and reduction to the lowest enlisted grade. 

12.  He was accordingly discharged on 23 June 1976.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial with a character of service of under other than honorable conditions and issuance of an Undesirable Discharge Certificate. This form confirms he completed 3 months and 26 days of total active service with 114 days of time lost.

13.  On 13 March 1981, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

14.  On 1 June 1983, the ABCMR denied his petition for an upgrade of his discharge. 

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

	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 record shows he 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.  He 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.  His discharge accurately reflects his overall record of service.

2.  There is no evidence in his record and he did not provide any evidence that shows he suffered a medical condition that led to his AWOL and ultimate discharge.  In fact, the immediate commander noted that the applicant had been medically examined and was found qualified for separation.  He also stated there did not appear to be any reasonable grounds to believe the applicant was at the time of his misconduct mentally defective, deranged, or abnormal.

3.  Based on his overall record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to either an honorable or a general 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 that the overall merits of this case

are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AC83-05732, dated 1 June 1983.



      _______ _   _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)                                         AR20130011286





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ABCMR Record of Proceedings (cont)                                         AR20130011286



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