BOARD DATE: 16 October 2014
DOCKET NUMBER: AR20140005039
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 undesirable discharge to an honorable or general discharge.
2. The applicant states he attempted to apply for benefits from the Department of Veterans Affairs (VA), but he was denied due to the character of his discharge. He has only received misdemeanor traffic violations and no felonies since his discharge from the military.
3. The applicant provides a copy of his DD Form 214 and a State of North Carolina Criminal Record Search.
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 AR20130001287, on 6 August 2013.
2. The applicant provides a State of North Carolina Criminal Record Search, which is considered new evidence that warrants consideration by the Board.
3. The applicant enlisted in the Regular Army on 6 June 1979.
4. The evidence shows:
a. He accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 3 December 1979, for being absent without leave (AWOL) from 16 November to 3 December 1979.
b. His duty status was changed from present for duty to AWOL effective 4 February 1980. He was subsequently dropped from the rolls on 5 March 1980.
c. On 11 June 1980, he was apprehended and confined by civil authorities for burglary. On 8 August 1980, he appeared in court and the charge was dismissed. He was released to military authorities and transported to Fort Bragg, NC.
5. The complete facts and circumstances of his discharge are not available for review with this case; however, his record contains a DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged on 11 September 1980.
a. His discharge was executed 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 and he received an under other than honorable conditions character of service.
b. He completed a total of 10 months and 12 days of creditable active service with lost time from 16 November to 2 December 1979 and 4 February to 10 June 1980.
6. He provides a State of North Carolina Criminal Record Search for the period 1990 to 27 February 2014 that appears to show he was found guilty of writing a bad check and driving while intoxicated.
7. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
8. 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, the type of discharge normally given under the provisions of this chapter, the loss of VA 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 request for reconsideration of his previous request for an upgrade of his undesirable discharge was carefully considered; however, it was found to be without merit.
2. His record is void of the specific facts and circumstances surrounding his discharge; however, it appears that he was charged with the commission of offense(s) punishable under the UCMJ with a punitive discharge.
3. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. He is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial. In doing so, he waived his opportunity to appear before a court-martial. It is also presumed that 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.
4. His discharge appears appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel. The evidence shows he accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL. He was once again found to be AWOL and he was dropped from the rolls due to being confined by civil authorities.
5. Notwithstanding his statement and post-service conduct, the ABCMR does not grant requests for discharge upgrades solely for the purpose of making service member's eligible for veterans' benefits.
6. In light of the foregoing, based on his record of indiscipline, his service does not merit an upgrade of his discharge to either an honorable or 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 AR20130001287, dated 6 August 2013.
_______ _ 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) AR20140005039
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