IN THE CASE OF:	  

		BOARD DATE:	  15 January 2015

		DOCKET NUMBER:  AR20140008861 


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 to upgrade his discharge under other than honorable conditions.

2.  The applicant states:

	a.  His attitude and behavior changed from the day of his enlistment to his last period of being absent without leave (AWOL).

	b.  He entered the Army without any prior history of trouble, criminal activity, or behavioral issues.

	c.  Between January 1980 and 27 May 1980, he was approached on numerous occasions by two individuals in his unit to smoke marijuana.  His refusal to be associated with any illegal substances led to verbal and physical attacks.  He was traumatized mentally and physically and feared for his life.  He was given two options by these individuals, say something and be labeled a snitch or leave the base be discharged.  He was shamed and manipulated by these individuals to the point of being forced or bullied out of the military.

	d.  The change in his behavior and attitude should have been investigated.

	e.  He should have received a general discharge due to the lack of investigative procedures regarding his behavior and attitude issues.

	f.  He was grossly manipulated and led to believe he was receiving a fair deal by obtaining this discharge instead of going to trial where this whole situation would have been brought out.

	g.  He requests review and reconsideration of the situation he was placed in and the physical abuse and emotional manipulation he endured by the individuals he was sworn to fight next to.  He was young, green, naïve, and easily intimidated by his fellow servicemen.  He was in fear for his own life.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* 11 DA Forms 4187 (Personnel Action)
* 3 DA Forms 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ))
* DD Form 458 (Charge Sheet)
* DA Form 2-1 (Personnel Qualification Record – Part II)

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 AR20120010257 on 6 December 2012.

2.  The applicant's contentions are new evidence that merit consideration by the Board.

3.  The applicant was born on 21 March 1962.  He enlisted in the Regular Army on 6 September 1979.  He completed his training and was awarded military occupational specialty 19D (Cavalry Scout).

4.  On 25 June 1980, nonjudicial punishment (NJP) was imposed against him for:

* being AWOL from 15 to 16 March 1980
* failing to report to his appointed place of duty on two separate occasions
* disobeying a lawful order from a superior noncommissioned officer
* being disrespectful toward a superior noncommissioned officer

5.  On 18 July 1980, NJP was imposed against him for being AWOL from 11 to 17 July 1980.

6.  On 15 August 1980, he was again AWOL and he was subsequently dropped from the unit rolls as a deserter.  While AWOL, he was apprehended by civil authorities for theft and released to his unit.

7.  On 14 October 1980, he was convicted by civil authorities for the civilian offense of theft and sentenced to 8 months in a county jail.  He ultimately returned to military control on 6 July 1981.

8.  On 28 July 1981, his command preferred court-martial charges against him for one specification of being AWOL from 15 August 1980 to 14 October 1980.

9.  On 29 July 1981, he consulted with legal counsel who advised him 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 the procedures and rights available to him.  Following consultation with legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.

10.  In his request for discharge, he indicated he was making the request of his own free will and had not been subjected to any coercion whatsoever by any person.  He also indicated he understood that by requesting discharge, he was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge.  He further acknowledged he understood if his discharge request 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 submitted a statement in connection with his voluntary request wherein he stated:

* his father had a heart attack and his mother did not go through proper channels (Red Cross) – he decided to go to his father's side
* the military was not what he expected and his attitude toward the military totally changed
* there was no possibility he could conform to the military style
* there would be no hesitation for him to be AWOL again – he and the military were not compatible

11.  On 1 August 1981, the separation authority approved the applicant's voluntary request for discharge and directed the issuance of a discharge under other than honorable conditions.

12.  On 5 October 1981, he was administratively discharged for conduct triable by court-martial under the provisions of Army Regulation 635-200, chapter 10.  His service was characterized as under other than honorable conditions.  He completed 1 year, 1 month, and 16 days of active service with 349 days of lost time.

13.  There is no evidence in the available records showing the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

	b.  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.

	c.  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.  Although the applicant contends the change in his behavior and attitude should have been investigated, there is no evidence he sought assistance from his chain of command or chaplain in resolving his problems within established Army procedures.

2.  He contends he was young.  However, age is not a sufficiently mitigating factor.  Although he enlisted at age 17, he successfully completed his training.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military terms of service.

3.  He contends he was traumatized mentally and physically and bullied out of the Army.  However, there is no evidence and he provided no evidence to support this contention.  There is no evidence showing he was the victim of harassment.

4.  He claims he was grossly manipulated and led to believe he was receiving a fair deal.  However, the evidence shows he consulted with counsel on 29 July 1981 and voluntarily requested discharge.  In his request for discharge, he indicated he was making the request of his own free will.

5.  Since his record of service included two NJP's, a serious civil offense, and 349 days of lost time, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.

6.  His voluntary request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations.

7.  The type of discharge directed and the reasons for his discharge were appropriate considering all the facts of the case.

8.  In view of the foregoing, there is no basis for granting the applicant 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 the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20120010257, dated 6 December 2012.



      ___________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)                                         AR20140008861



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ABCMR Record of Proceedings (cont)                                         AR20140008861



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