BOARD DATE:	  3 April 2014

		DOCKET NUMBER:  AR20130012928 


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 undesirable discharge.

2.  The applicant states, in effect:

* he is sorry for what he did; he lived a very rough life growing up and things were not always easy for the family
* he grew up in a small town, in the house of his alcoholic father, and that environment affected his upbringing

3.  The applicant does not provide additional 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 AR20110004615, dated 1 September 2011.

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 only considered an upgrade to a general discharge.  In similar cases, the Board normally considers both, a general and an honorable discharge.  Therefore, the Board will reconsider his request as an exception to policy.
3.  The applicant's records show he enlisted in the Regular Army on 15 May 1969 and he held military occupational specialty 76N (Procurement Specialist).  He attained the rank/grade of specialist four (SP4)/E-4. 

4.  Following completion of training, he was issued reassignment instructions to Germany and ordered to report to the U.S. Army Overseas Replacement Detachment, Fort Dix, NJ.  

5.  On 26 May 1970, his unit reported him in an absent without leave (AWOL) status and on 24 June 1970, he was dropped from the rolls as a deserter.  He returned to military control on 27 December 1970.  He was placed in confinement at Fort Campbell, KY, from 31 December 1970 to 12 April 1971.  

6.  On 12 April 1971, consistent with his plea, he was convicted by a special court-martial of one specification of being AWOL from 3 June to 28 December 1970.  The court sentenced him to confinement at hard labor for 2 months, a forfeiture of pay for 2 months, and a reduction to the lowest enlisted grade.  The convening authority approved a lesser sentence on 23 April 1971 by suspending the confinement for 6 months.

7.  He was issued assignment instructions from Fort Campbell, KY to the U.S. Army Overseas Replacement Station, Fort Lewis, WA, for overseas movement to the U.S. Army Pacific. 

8.  On 1 September 1971, he departed his Fort Lewis, WA unit in an AWOL status but he returned on 10 September 1971.  

9.  On 10 September 1971, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 1 to 10 September 1971.  

10.  He served in Vietnam from on or about 12 September 1971 to on or about 7 March 1972.  He was assigned to the 203rd Aviation Company (Assault Helicopter). 

11.  On 8 March 1972, he departed his unit in an AWOL status and on 6 April 1972, he was dropped from the Army rolls as a deserter.  He ultimately returned to military control on 23 February 1973.  

12.  On 20 March 1973, court-martial charges were preferred against the applicant for one specification of AWOL from 8 March 1972 to 23 February 1973. 

13.  On 22 March 1973, 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 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 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 elected to submit a statement on his own behalf

14.  In his statement, the applicant indicated that he understood he would receive an undesirable discharge and will lose all veteran benefits.  He admitted having been on drugs and he felt he could no longer perform military service.  He stated he would not pull any more duty and he did not like the Army anymore.  He requested to be released and indicated he did not want a drug amnesty.  He added that he did not like being told what to do or being pushed around.  Likewise, he did not like being told when to go and when to come back.  He indicated that was the reason he "hated the Army" and the reason "why I take drugs." 

15.  On 5 and 9 April 1973, his immediate and intermediate commanders recommended approval of the discharge with the issuance of an Undesirable Discharge Certificate.

16.  On 12 April 1973, the separation authority approved the applicant's request for voluntary 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.

17.  The applicant was accordingly discharged on 19 April 1973.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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 the issuance of an under other than honorable conditions characterization of service.  He was issued an Undesirable Discharge Certificate. This form confirms he completed 2 years and 26 days of total active service with 396 days of time lost.

18.  On 29 April 1977, the Army Discharge Review Board (ADRB) reviewed his discharge but found it proper.  Accordingly, the ADRB denied his petition for a change in the type and nature of the discharge he received. 

19.  On 29 October 1981, the ADRB again reviewed his discharge but found it proper.  Accordingly, the ADRB denied his petition for a change in the type and nature of the discharge he received.

20.  On 1 September 2011, the ABCMR considered his petition for an upgrade of his discharge to a general discharge.  The Board denied his request. 

21.  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 states 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 states 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.  

2.  The applicant chose to go AWOL on multiple occasions.  Despite a court-martial conviction and an Article 15 for being AWOL, the applicant went AWOL a third time.  When court-martial charges were preferred against him, he chose the voluntary discharge in lieu of facing a court-martial.  

3.  He submitted a statement clearly indicating he would not pull any more duty and he did not like the Army anymore.  He requested to be released and indicated he did not want a drug amnesty.  He added that he did not like being told what to do or being pushed around.  Likewise, he did not like being told when to go and when to come back.  He indicated that was the reason he hated the Army and the reason why he took drugs.  

4.  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.  The applicant's military service was marred with misconduct.

5.  Based on his overall record of indiscipline that included one court-martial conviction, one instance of NJP, and an extensive history of AWOL/desertion, 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 a general or an 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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20110004615, dated 1 September 2011.



      _______ _  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)                                         AR20130012928



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ABCMR Record of Proceedings (cont)                                         AR20130012928



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