IN THE CASE OF:	   

		BOARD DATE:	  3 March 2015

		DOCKET NUMBER:  AR20140013728 


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 previous request for an upgrade of his discharge under other than honorable conditions (UOTHC) to a general discharge (GD) or an honorable discharge (HD). 

2.  The applicant states, in effect, that he did not originally submit all of his documentation with his first request because he was incarcerated at the time.  He now states that in 1972, not much was known about people suffering from mental disorders.  He was raised with no mother or father and was given away at birth to his grandmother.  He states he was around drunks, hustlers, and drug addicts and this was the only life he knew.  When he got in trouble in the 11th grade, the court told him to choose between jail and the military.  The Army recruiter knew that he was diagnosed while in school as being problematic, with adjustment problems, as a substance abuser, and as a threat to others.  

3.  The applicant further states that when he finally joined the military his problems were compounded and he had issues adjusting to military life.  He claims he never knew about the ramifications of signing a UOTHC discharge.  Under the Chapter 10 guidelines, he was not supposed to be coerced into signing for this type of discharge, but nonetheless, he was forced to sign.  

4.  Furthermore, the applicant states he has been homeless, an alcoholic, and not able to maintain work or a healthy relationship.  He needs his discharge upgraded to get mental health and medical treatment in order to survive.  


5.  He provides the following documents:

* a self-authored statement dated 26 June 2014
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 25 August 1970
* Clinical notes from a licensed clinical social worker dated 13 October 2010
* Clinical notes from a licensed clinical social worker dated 28 February 2008
* Clinical notes from a social worker dated 19 March 2002
* Bio-psychosocial Assessment notes dated 28 July 1997 
* Clinical notes from a nurse at the Red Cross dated 2 July 1997

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 AR20130013066, on 3 April 2014.

2.  The applicant presents a new argument and evidence that warrants consideration by the Board. 

3.  On 25 August 1970, the applicant was inducted into the Army of the United States.   After completing initial entry training, he was awarded military occupational specialty 11B (Light Weapons Infantryman).
  
4.  The applicant served on active duty in the Army from 25 August 1970 to 
18 October 1972, with an assignment in Germany for approximately 18 months.  His record documents no acts of valor, significant achievement or service warranting special recognition during this period.

5.  He is shown to have been absent without leave (AWOL) on five occasions:

* 18 January 1971 to 10 February 1971
* 15 February 1972 to 16 February 1972
* 30 May 1972 to 15 July 1972
* 17 July 1972 to 25 July 1972
* ? – 18 September 1972

6.  For the last period of AWOL, the applicant’s records contain only a record of the date of his return to military control.  He was placed in confinement at the time with a release from confinement several weeks later for the purpose of his return to the United States for separation.

7.  The applicant received nonjudicial punishment (NJP) on 10 August 1971 for assault on a fellow Soldier.

8.  He was found guilty on two occasions by a special court-martial:

* 11 March 1971, for his 1st AWOL
* 12 April 1972, for his 2nd AWOL, breaking restriction, and assault on a civilian female.

9.  The complete facts and circumstances of his discharge are not contained in the available records.  His record does contain a DD Form 214 showing he was discharged on 18 October 1972, under other than honorable conditions, under the provisions of the Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.

10.  The applicant provides the following information for reconsideration:

	a.  Five “Homeless Program” notes from 1997 to 2010.  Essentially, the documents are clinic notes from social workers and nurses that describe the applicant at the time he entered the Homeless Program including a Bio-Psychosocial Assessment.  They provide an overview of the applicant’s personal history that shows his active addiction with alcohol and crack cocaine.  The counselors noted his family history as being positive for addictive behaviors, and that his step-mother ran a “shot house”, and how he received his first drink at 6 years old.

      b.  The applicant also provides documentation on his bouts of serious depression and anxiety, tension, trouble understanding, and lack of concentration.  He states he has been homeless for almost 2 years and has been staying in shelters.  Although he states that he has been receiving some assistance with the “Homeless Program”, he has been unable to work due to difficulties with transportation and conflicts with shelter hours.   Furthermore, the applicant states he has received intensive outpatient treatment for his addictions but unable to have residential treatment since it will conflict with his job search.

11.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.

   a.  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 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.

   b.  Paragraph 3-7a provided that an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate.

   c.  Paragraph 3-7b provides that a GD 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 ABCMR does not grant requests to upgrade discharges solely for the purpose of making applicants eligible for the Department of Veterans Administration benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

2.  The complete facts and circumstances of his discharge are not available; however, his record shows he was AWOL for over 114 days, an offense for which he could have been tried by court-martial and punished 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.  The applicant is presumed to have voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by 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.

3.  There is no documentary evidence by a medical authority indicating he had a mental condition at the time of his service of such severity that he should not have been held responsible for his actions.  The record shows he was charged with being AWOL for 5 periods which resulted in one NJP and two courts-martial for breaking restriction, assault and AWOL, all of which are serious misconduct.  
The UOTHC discharge he received as a result of his misconduct appropriately characterizes his service.  

4.  In the absence of such evidence to the contrary, one can only conclude that his service did not meet the standards of acceptable conduct and performance of duty for Army personnel required for an HD or a GD.  

5.  Finally, the applicant has provided documentation from social workers and nurses regarding his addictions post service and his personal family history; however, it does not mitigate the circumstances enough to warrant changing the characterization of his service.

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 AR20130013066, dated 3 April 2014.





      _______ _   _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)                                         AR20140011501



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ABCMR Record of Proceedings (cont)                                         AR20140013728



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