IN THE CASE OF:	  

		BOARD DATE:	  3 February 2015

		DOCKET NUMBER:  AR20140009899 


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 (UOTHC) discharge to an under honorable conditions (general) discharge.

2.  The applicant states:

* at the time of his discharge, he was not aware of his mental health status due to his father's death
* if he had received the proper help he would have stayed in the Army like he always wanted to; he never wanted to leave and he felt pressured
* he did not know his mental status was a factor at the time but he now has a medical statement 
* he also wants the Board to know that he was taken to Fort Sill, OK and the next day he went before a judge in a room but he was not advised of his rights nor was he given a choice to stay in the Army
* he was told to accept the under other than honorable condition discharge and he was given a bus ticket home
* he had mental issues but he did not realize the importance of this information at the time 

3.  The applicant provides:

* Letter of Recommendation from a Psychiatrist
* Federal Bureau of Prison - Patient Problem List
* Mental Health Report
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 AR20070018385, dated 3 April 2008.

2.  The applicant does not meet the two-tiered criteria for reconsideration in that his request for reconsideration was not received within one year of the Board's decision.  However, he provides a new argument and a letter from a psychiatrist which were not previously considered by the Board; therefore, they are considered new evidence and as a one-time exception, will be considered by the Board.

3.  He enlisted in the Regular Army on 27 May 1982 and he was assigned to Fort Jackson, SC for completion of training in military occupational specialty (MOS) 63B (Light Vehicle Mechanic). 

4.  Following completion of basic combat training and reassignment to another training unit for completion of MOS training, on 18 October 1982, he departed his unit in an absent without leave (AWOL) status and 17 November 1982, he was dropped from Army rolls as a deserter. 

5.  He returned to military control at Fort Jackson on 23 November 1982 and resumed training.  However, on 24 November 1982, he again departed his unit in an AWOL status and 18 December 1982, he was dropped from Army rolls as a deserter. 

6.  He ultimately returned to military control on 25 January 1983.  He was assigned to the Personnel Control Facility, Fort Sill, OK for processing.  

7.  On 28 January 1983, his command preferred court-martial charges against him for two specifications of being AWOL from 18 October to 23 November 1982 and from 24 November 1982 to 25 January 1983. 

8.  On 2 February 1983, 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 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.  In his request for discharge he indicated or acknowledged he understood: 

	a.  he was making the request of his own free will and he had not been subjected to any coercion by anyone; 

	b.  that if his discharge request was approved, he could be discharged under other than honorable conditions and furnished a UOTHC Discharge Certificate; 

	c.  that if such discharge was 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; and 

	d.  he elected not to make a statement on his own behalf.

9.  On 1 March 1883, 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 a UOTHC Discharge Certificate and reduction to the lowest enlisted grade, if applicable.  Accordingly, the applicant was discharged on 14 March 1983. 

10.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time 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 a UOTHC Discharge Certificate.  This form confirms he completed 6 months and 1 day of active service with 98 days of time lost.

11.  On 30 March 1988, the Army Discharge Review Board (ADRB) reviewed his discharge but found it proper and equitable.  Accordingly, the ADRB denied his petition for an upgrade of his discharge. 

12.  On 3 April 2008, the Army Board for Correction of Military Records (ABCMR) also reviewed his discharge after he attributed his AWOL to being young and had personal problems.  However, the ABCMR also found his discharge proper and equitable and denied his petition for an upgrade of his discharge. 

13. He provides two documents:

	a.  A Community Counseling Letter of Recommendation, authored by a correctional facility psychiatrist on 29 May 2014.  The psychiatrist states he has been treating the applicant since 1984 when the applicant first came into the prison system.  He opines that the applicant went AWOL due to the death of his father.  The psychiatrist opines the applicant's discharge should be upgraded. 

	b.  A Mental Health Evaluation, dated 13 November 1980, from the Hot Springs County Mental Health, Malvern, AR.  This report shows that upon examination the mental diagnosis was that of an anxiety attack. 

	c.  A Bureau of Prison, Patient Problem List, dated 29 August 2001. 

14.  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.  A UOTHC discharge certificate would normally be furnished an individual who was discharged for the good of the Service.

	a.  paragraph 3-7a, 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, 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.  

15.  According to the Manual of Court-Martial, the maximum punishment for violating Article 86 of the UCMJ (in cases of AWOL for more than 30 days) is a dishonorable discharge, a forfeiture of all pay and allowances, and confinement for 1 year.




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.  With respect to his arguments:

	a.  Contrary to his contention that he was not advised of his rights, the evidence of record clearly shows 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.

	b.  The applicant chose to go AWOL on more than one occasion.  Likewise, when court-martial charges were preferred against him, he could have elected trial by a court-martial if he felt he was innocent of the charges; but, he chose a voluntary discharge.

	c.  The applicant's current medical condition is regrettable.  However, at the time of his discharge, there is no evidence of record that shows he suffered from a medical or a mental condition that caused him to go AWOL on two occasions.

3.  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.

4.  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 an upgrade of his 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 AR20070018385, dated 3 April 2008.



      _______ _   __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)                                         AR20140009899



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ABCMR Record of Proceedings (cont)                                         AR20140009899



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