IN THE CASE OF

		BOARD DATE:	    1 April 2014

		DOCKET NUMBER:  AR20130012586 


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, in effect, reconsideration of his earlier request for an upgrade of his undesirable discharge.

2.  The applicant defers his statement and evidence to counsel. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, reconsideration of the applicant's earlier request for an upgrade of his undesirable discharge.

2.  Counsel states:

* the applicant had a valid reason to go in an absent without leave (AWOL) status which mitigates his actions
* in his request for discharge in lieu of trial by court-martial, the applicant explained that he incurred significant debt in attempting to care for his family
* he also explained that he needed to get out of the Army to take care of the financial hardship he was experiencing
* his chain of command recommended approval of his request based primarily on a substantial amount of good service
* additional information also revealed the applicant's alcoholic father attempted to sexually abuse his sisters
* the applicant felt obligated to do whatever was needed to protect his sisters
* his AWOL was directly related to his attempts to assist in the caretaking of his younger siblings
* he had served in Vietnam and received multiple awards; he regretted going AWOL and his post-service conduct record is exemplary
* the applicant has suffered long enough as a result of the characterization of his service

3.  Counsel provides:

* applicant's statement (previously submitted)
* partial separation packet (previously submitted)
* Certificate of Achievement (previously submitted)
* Certificate of Completion (previously submitted)
* Certificate of Outstanding Accomplishment (previously submitted)
* post-service certificate of training (previously submitted)
* post-service Gold Star Award certificate (previously submitted)
* Certificate of Attendance (previously submitted)

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 AR20060008421, on 9 January 2007.

2.  The applicant does not meet the two-tiered criteria for reconsideration in that his request is neither submitted within 1 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 or explain the different types of characterization of service.  Therefore, the Board will reconsider his request as an exception to policy.

3.  The applicant's records show he enlisted in the Regular Army (RA) on 31 October 1961 and he held military occupational specialty 310.00 (Field Communication Crewman). 

4.  He served in Korea from on or about 2 April 1962 to on or about 13 June 1963.  He was then reassigned to Fort Bragg, NC. 

5.  He was honorably discharged on 1 November 1963 for the purpose of immediate reenlistment in the RA.  His DD Form 214 shows he completed 
2 years and 1 days of creditable active service.  He was awarded or authorized the:
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-1)
* Second Class Gunner with Machine Gun Bar
* Marksman Marksmanship Qualification Badge with Rifle Bar

6.  He reenlisted in the RA on 2 November 1963.  He subsequently served in Germany from on or about 6 December 1963 to on or about 13 November 1965. 

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

* 4 May 1964, for being absent from his unit on 4 May 1964
* 17 August 1964, for being absent from his unit on 17 August 1964

8.  Upon completion of his Germany tour, he was reassigned to Fort Bragg, NC.  However, while at Fort Bragg: 

* he departed his unit in an AWOL status on 14 May 1966 and he returned to military control (at Fort Dix, NJ) on 16 May 1966
* he again departed his unit in an AWOL status on 17 May 1966 and he returned to military control (at Fort Dix, NJ) on 11 July 1966

9.  On 21 June 1966, the Federal Bureau of Investigation informed officials of the Department of the Army that the applicant had been arrested by civil authorities on:

* 14 May 1966, vagrancy and automobile larceny
* 26 May 1966, stealing and converting to own use Government property

10.  He was placed in pre-trial confinement from 12 to 26 July 1966.  On 27 July 1966, he was convicted by a special court-martial of two specifications of AWOL from 14 to 16 May 1966 and from 17 May to 11 July 1966.  The court sentenced him to a forfeiture of $98.00 pay per month for 3 months, a reduction to E-3, and a reprimand.  The convening authority approved his sentence on 8 August 1966.

11.  He served in Vietnam from on or about 25 October 1966 to 28 May 1968.  He was assigned to the 3rd Battalion, 6th Field Artillery Regiment.  He was awarded or authorized the National Defense Service Medal, Vietnam Service Medal, and Vietnam Campaign Medal. 

12.  Upon completion of his Vietnam tour, the applicant was reassigned to Fort Hood, TX.  

13.  On 7 August 1969, he departed his unit in an AWOL status and on 5 September 1969, he was dropped from the Army rolls as a deserter.  

14.  On 31 August 1970, Headquarters, U.S. Army Training Center, Fort Lewis, WA, published Orders Number 243 indicating the applicant had returned to military control in Medford, OR, on 16 August 1970 and he was attached to the Special Processing Detachment, Fort Lewis, WA.

15.  His records contain a DA Form 268 (Report for Suspension of Favorable Personnel Actions), dated 24 August 1970, that shows he was pending a general court-martial/chapter 10. 

16.  The DD Form 458 (Charge Sheet) and his request for discharge are not available for review with this case.  His request for discharge in lieu of trial by court-martial would have indicated: 

	a.  He consulted with legal counsel and would have been 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.

	b.  Following consultation with legal counsel, he would have 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.  In his request for discharge he would have indicated:

* he was making the request of his own free will and he had not been subjected to any coercion by anyone
* he 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 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 would have indicated and/or submitted a statement in his own behalf 

17.  On 15 October 1970, the applicant's senior commander recommended approval of the discharge action with the issuance of an Undesirable Discharge Certificate. 

18.  On 20 October 1970, 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 lowest enlisted grade and furnished an Undesirable Discharge Certificate.  

19.  In connection with the discharge action, the separation authority issued, and the applicant acknowledged, an Expulsion from United States Military Reservation. 

20.  On 3 November 1970, Headquarters, U.S. Army Personnel Center, Fort Lewis, WA, published Special Orders Number 307 ordering his discharge from the Army effective 3 November 1970 with the issuance of a DD Form 258A (Undesirable Discharge Certificate). 

21.  On 3 November 1970, the applicant was accordingly discharged.  His DD Form 214 for this period of service 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 a court-martial with an undesirable discharge.  He completed 3 years, 4 months, and 28 days of active service during the period under review with lost time from 14 to 15 May 1966, 17 May to 10 July 1966, 5 September to  1 November 1969, and 2 November 1969 to 15 August 1970. 

22.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 

23.  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.  At the time an undesirable discharge was normally given.

	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 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.  Although his request for voluntary discharge is not available for review with this case, he would have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  It is presumed that all requirements of law and regulation were met and his rights were presumably protected throughout the separation process. 

2.  Chapter 10 is used when a Soldier who has committed an offense or offenses for which the authorized punishment includes a punitive discharge.  The Soldier may submit a request for discharge for the good of the service in lieu of trial by court-martial.  Although an honorable or general discharge is authorized, at the time an undesirable discharge was normally considered appropriate.

3.  The applicant's service in this case did not rise to the level of an honorable or a general characterization of service.  An honorable character of service is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel and the under honorable conditions (general) characterization is appropriate to those Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

4.  The applicant's military service included three instances of NJP, one court-martial conviction, civilian charges, and an extensive history of AWOL and/or desertion.  If the applicant had encountered financial problems or family problems at the time he could have addressed such issues with his chain of command or other supporting channels at his installation.  Furthermore, if he believed he was innocent he could have accepted trial by court-martial.  

5.  The senior commander appears to have recommended approval of the discharge action based "primarily on substantial amount of good service" to save the applicant from a court-martial. 
6.  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 AR20060008421, dated 9 January 2007.





      ___________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)                                         AR20130012586





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ABCMR Record of Proceedings (cont)                                         AR20130012586



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