IN THE CASE OF:  	  

		BOARD DATE:  7 May 2015	  

		DOCKET NUMBER:  AR20140016288 


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 discharge.

2.  The applicant states he:

* was a native Spanish speaker at the time he joined the New Jersey Army National Guard (NJARNG) at age 16; he tested in the lowest level
* he successfully completed basic combat and advanced individual training; he was still 16 years of age and he was not caught
* he was not counseled on the benefits of an honorable discharge and he was not adequately represented by counsel
* he served successfully as a member of the ARNG until 1977; his parents, who also spoke Spanish, never forwarded his mail to him
* he was advised that after 5 or 7 years, he could get his discharge upgraded; he was also told that someone thin like him could get raped in prison 
* he is now a certified chaplain/street minister

3.  The applicant provides:

* DD Form 214 (Report of Separation from Active Duty)
* Statement regarding his absence
* Letters to his next of kin 
* DA Form 2-1 (Personnel Qualification Record)
* Army Discharge Review Board (ADRB) decision 
* DA Forms 4187 (Personnel Action)
* Multiple post-service certificates and letters

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 AC83-03396, on 11 May 1983.

2.  The applicant does not meet the two-tiered standard for reconsideration in that his request is more than 1 year after the Board's original decision and the applicant failed to provide any new substantial evidence; however, in its original Record of Proceedings, the Board did not fully explain his discharge process.  His request is now being reconsidered by the Board as an exception to policy.

3.  The applicant was born in November 1956 and he enlisted in the NJARNG for 6 years at nearly 18 years of age on 9 October 1974.  He agreed to remain a member of the Ready Reserve during the period of this enlistment unless he was sooner relieved by proper authority. 

4.  He entered active duty for training (ADT) on 11 November 1974 and completed required training for award of military occupational specialty 13B (Field Artillery Basic).  He was honorably released from ADT on 23 March 1975 to the control of his ARNG unit. 

5.  Between March 1975 and March 1977, he accumulated an extensive history of unexcused absence from unit training assemblies.  In each case, he was advised via certified mail of his absence and the consequences of his actions.

6.  He was ordered to active duty on 2 March 1977.  However, he failed to report and as a result his chain of command reported him in an absent without leave (AWOL) status on 2 March 1977 and dropped from the rolls as a deserter on 31 March 1977.  He ultimately returned to military control on 12 August 1977. 

7.  On 15 August 1977, his command preferred court-martial charges against him for one specification of AWOL from 2 March 1977 to 12 August 1977. 

8.  On 15 August 1977, his commander interviewed him in an effort to determine the cause of his AWOL.  The applicant indicated that he did not want to be placed on active duty and he was just disgruntled and went AWOL.  He further indicated he did not want help with his problems and just wanted out of the Army. 

9.  On 17 August 1977, the applicant 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/acknowledged/understood: 

* he was making the request of his own free will and he had not been subjected to any coercion by anyone
* he was guilty of the charge(s) against him or lesser included offense(s) therein contained which authorized the imposition of a bad conduct discharge or a dishonorable discharge
* 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 not to submit a statement in his own behalf 

10.  On 26 and 31 August 1977, his immediate and intermediate commanders recommended approval of the applicant's discharge with the issuance of an Undesirable Discharge Certificate.  The immediate commander noted that the applicant had been medically examined and was found qualified for separation.  He also stated there did not appear to be any reasonable grounds to believe the applicant was at the time of his misconduct mentally defective, deranged, or abnormal. 

11.  On 7 September 1977, the separation authority approved the applicant's request for 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. 

12.  He was accordingly discharged on 16 September 1977.  The DD Form 214 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 a character of service of under other than honorable conditions and issuance of an Undesirable Discharge Certificate. This form confirms he completed 1 month and 4 days of active service during this period and he had 164 days of lost time. 

13.  On 2 January 1983, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

14.  On 11 May 1983, the ABCMR denied his petition for an upgrade of his discharge. 

15.  He provides multiple post-service certificates of appreciation, completion, and training; and several letters related to being a chaplain. 

16.  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, 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 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.  His discharge accurately reflects his overall record of service.

	a.  Contrary to his argument that he was 16 years of age when he enlisted, the evidence of record shows he was nearly 18 years of age upon enlistment and 20 years of age when he went AWOL.  Nevertheless, there is no evidence that his misconduct was caused by his age or that he was any less mature than other Soldiers who successfully completed their service. 

	b.  Also contrary to his implication that he did not speak much English at the time, the evidence of record clearly shows he signed an enlistment contract in English.  He also successfully completed field artillery training in English, received an ADT DD Form 214 in English, and he submitted a voluntary request for discharge also in English.  Most importantly however, is the fact that speaking Spanish is not a cause for someone to go AWOL. 

	c.  Also contrary to his contention that he was told his discharge would be upgraded after 5 or 7 years, the Army never had nor does it now have a policy wherein the characterization of service is upgraded due to passage of time. 

	d.  Finally, contrary to his argument that he was provided inadequate counsel, 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, 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.  Only following that consultation did he make a voluntary request for discharge. 

2.  There is no evidence in his record and he did not provide any evidence that shows he suffered any condition that led to his AWOL and ultimate discharge.  In fact, the immediate commander noted that the applicant had stated that he did not want help and only wanted out of the Army.  He chose to go AWOL and he chose to be discharged instead of facing trial for his AWOL. 

3.  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 AC83-05732, dated 1 June 1983.




      _______ _   _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)                                         AR20140016288



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ABCMR Record of Proceedings (cont)                                         AR20140016288



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