IN THE CASE OF:	  

		BOARD DATE:	  6 August 2015

		DOCKET NUMBER:  AR20150000347 


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 an upgrade of his general discharge (in effect, undesirable discharge) to a fully honorable discharge.  He also requests a personal hearing.

2.  The applicant defers his statement and evidence to counsel. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's earlier request for an upgrade of his discharge. 

2.  As a new but related issue, counsel requests correction of the applicant's 
DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), item 11c:

* (Reason and Authority) to show he was discharged under the provisions of Army Regulation (AR) 635-200 (Personnel Separations), chapter 5 (Convenience of the Government) in lieu of AR 635-200, chapter 10 
* Separation Program Number (SPN) 246 

3.  Additional counsel requests that the Board take action by reviewing the applicant's discharge to determine whether the characterization of service, separation authority, reentry code, and narrative reason for separation were proper based on standards of equity or propriety.  Counsel adds that: 
* the applicant was unaware that he had a legal issue pertaining to his separation (action)
* he is currently in the hospital with cancer
* he was not properly counseled as to the legal ramifications of a chapter 10 (in lieu of court-martial)
* the applicant does not remember any paperwork associated with a chapter 10 discharge or meeting with an attorney 
* his record is void of the statement or request for discharge in lieu of court-martial that is required by the regulation; he was not given due process
* since leaving the Army, his life has unraveled and he was for all purposes homeless 

4.  Counsel provides:

* DD Form 214
* DA Form 20 (Enlisted Qualification Record)
* Induction and Separation Physicals 
* Dental records
* DA Form 47 (Record of Induction) 
* Applicant's Affidavit
* Statement from his daughter
* Post-service radiology 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 AR2000036002, on 10 May 2000. 

2.  The applicant does not meet the two-tiered criteria for a request for reconsideration in that his request was not received within 1 year of the Board's original decision.  However, the new issue (narrative reason for separation) is related to the characterization of service and the applicant requested a personal hearing, therefore, his request will be reconsidered. 

3.  The applicant's records show he was inducted into the Army of the United States on 25 March 1969.  He completed basic combat training at Fort Bragg, NC and he was reassigned to Fort Dix, NJ on or about 28 July 1969 for completion of advanced individual training. 


4.  On 11 July 1969, he was arrested and confined by civil authorities.  He was released and returned to military control on or about 27 July 1969.  The complete facts and circumstances are not available.  However, it appears he was placed in pre-trial confinement.  

5.  A DA Form 268 (Report for Suspension of Favorable Personnel Action), dated 14 July 1969, shows while in confinement he was flagged for court-martial action due to being disrespectful in language toward a noncommissioned officer (NCO) and breaking restriction (on an unknown date). 

6.  On 1 August 1969 he departed his training unit in an absent without leave (AWOL) status and on 30 August 1969 he was dropped from the rolls as a deserter. 

7.  Also on 30 August 1969, his company commander: 

	a.  Dispatched a letter to his spouse informing her that the applicant had been reported AWOL and urged her to have the applicant contact his unit if she knew his whereabouts. 

	b.  Initiated a DD Form 458 (Charge Sheet) charging the applicant with violating the Uniform Code of Military Justice (UCMJ), Article 86, one specification of being AWOL from on or about 1 August 1969 to a future date. 

8.  On 4 August 1972, Military Police at Fort Meade, MD, initiated a DA Form 19-32 (Military Police Report) indicating the applicant had been apprehended by military authorities on or about 4 August 1972 in Washington, DC. 

9.  On 14 August 1972, the applicant underwent a medical examination at the 76th Engineer Battalion, Dispensary.  The examining physician found him medically qualified for separation and assigned a PULHES of "1-1-1-1-1-1." 

10.  His records contain a 1AA Form 515 (Transmittal of Court-Martial Charges), dated 15 August 1972.  This form shows the commanding officer, Company B, U.S. Army Personnel Control Facility, Fort Meade submitted the court-martial charge sheet (DD Form 458) and supporting evidence and recommended trial by a general court-martial empowered to adjudge a dishonorable discharge or a bad conduct discharge. 

11.  On 15 August 1972, following what appears to be referral of court-martial charges, the applicant consulted with legal counsel (Captain (CPT) B--- W. R---, Judge Advocate General Corps (JAGC)) and 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.  Following consultation with legal counsel, he voluntarily requested discharge under the provisions of chapter 10, AR 635-200, for the good of the service in lieu of trial by court-martial.  In his request for discharge, he stated/acknowledged that:

* prior to completing this request, he was afforded the opportunity to consult with counsel and he did so
* he was making the request of his own free will and he had not been subjected to any coercion
* he acknowledged he understood that if his request was approved he could be furnished an Undesirable Discharge Certificate
* he acknowledged that he understood if such a 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 (VA)
* he acknowledged 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

12.  His records also contain a DD Form 457 (Investigating Officer's Report), dated 14 September 1972, that shows: 

	a.  On 28 August 1972, an investigating officer (IO) was appointed to conduct an Article 32 hearing.  He contacted the applicant's defense counsel who after consulting with the applicant requested a delay until 4 or 5 September 1972.  However, the IO never received such letter. 

	b.  On 11 September 1972, the IO contacted the applicant's defense counsel and set 14 September 1972 as the date for the Article 32 hearing.  The hearing was completed with the exception of the unsworn statements which defense counsel indicated he would submit to the IO. 

	c.  On 19 September 1972, an unsworn statement was given to the IO by the applicant's defense counsel.  It essentially stated the applicant wanted to escape his personal problems by going AWOL.  He realized that he must accept responsibility for his actions and for that reason, he was requesting a discharge from the Army. 

	d.  The IO made a recommendation by stating although a lengthy period of AWOL and desertion was charged here, he believed the interest of both the Army and the applicant would be served if a chapter 10 was affected.  The charge should be reduced to violation of Article 86 and sent to a special court-martial convening authority authorized to adjudge a bad conduct discharge if the applicant was not allowed to resign in-lieu of a court-martial. 

13.  On 26 September 1972, the Commanding Officer, Headquarters, U.S. Army Personnel Control Facility, Fort Meade, considered the charges against the applicant and recommended trial by a special court-martial empowered to adjudge a bad conduct discharge. 

14.  On 27 September 1972, by endorsement, a Staff Judge Advocate (SJA) advised the Commanding Officer, Headquarters, U.S. Army Personnel Control Facility that in light of the facts and circumstances of the applicant's case, it would seem appropriate that he would be discharged under the provisions of chapter 10, AR 635-200.  The SJA stated that the applicant was noted to be a drug addict who was turned in by his wife.  Rehabilitation was unlikely and prolonged confinement would serve no purpose. 

15.  Although the approval memorandum is not available for review, it appears the separation authority approved the applicant's voluntary request for discharge for the good of the service in accordance with chapter 10 of AR 635-200 and directed that he be reduced to the lowest enlisted grade and issued an Undesirable Discharge Certificate.  His records contain: 

a. Special Orders Number 198, issued by Headquarters, Fort Meade, on 
11 October 1972, ordering his discharge from active duty effective 18 October 1972 in accordance with chapter 10 of AR 635-200 with an under other than honorable conditions characterization of service.  

	b.  A DD Form 214 that shows he was discharged on 18 October 1972, for the good of the service in lieu of trial by court-martial with an under other than honorable conditions discharge.  He was issued an Undesirable Discharge Certificate and he was assigned SPN Code 246.  His DD Form 214 shows he completed 6 months and 3 days of active service and he had 1,117 days of lost time.  It also shows in: 

* item 11c - CH10 AR 635-200 SPN 246
* item 13a - Under Conditions Other Than Honorable
* item 15 (Reenlistment (RE) Code) - RE-3

16.  On 13 November 1973, he appeared before the Army Discharge Review Board (ADRB) and testified in his own behalf with counsel present.  After hearing his testimony and consideration of his military records and other evidence, the ADRB determined his discharge was proper and equitable and denied his petition for an upgrade of his discharge.
17.  On 10 May 2000, the ABCMR reviewed his records and the evidence he submitted but determined the evidence did not demonstrate the existence of an error or an injustice.  As such, the ABCMR denied his petition for an upgrade of his discharge. 

18.  He provides a self-authored affidavit in which he states: 

	a.  He entered active duty on 25 March 1969.  His plan was to follow in his father's footsteps and served for 20 years.  During basic training, he fell on his buttocks twice in the same place.  After his second fall, he went to sick call and was given a back brace and some pills; however, this did not help.  He resumed basic training but could not keep up because he was in so much pain so he went back to sick call.  He received more pills but it did not help.  His back injury was preventing him from doing his best.  He was called in front of his unit and he was told the unit would not be getting the awards they deserved because he was "lagging behind."  Other members of his unit who were unhappy because they lost the award, started ganging up on him.  Even though he told his chain of command he was in pain, he was given extra duties at the end of his duty day.

	b.  At the same time, his wife wrote him a letter telling him that she was pregnant and he had messed up her life.  She was living with his mom at the time and he was informed that his wife would leave for days at a time, which caused him great concern.  He told his chain of command about his problems but they did not care.  He went AWOL to find his wife.  He found her and took her to Walter Reed Medical Center, Washington, DC, for help with her pregnancy issues.  They returned home but her pregnancy issues continued.  The next day, she was taken to Andrews Air Force Base, MD.  Unfortunately, she gave birth to a stillborn baby.  The death of their baby drove her down a mental spiral and she started to become delusional.  He could not get her to seek mental health care because she was afraid that doctors would find her "crazy."  She blamed him for her mental state, but the next moment said she wanted him to be near her.  This push/pull situation became the state of their relationship.  She would leave for days at a time and then beg him to stay.  She asked him to have another child to replace the one they lost.  He felt that he was being mentally dragged down with her, “can't live with her, can't live without her.”

	c.  One day, he came home and found the police at their home and she pointed at him and told them that he was AWOL.  He was in a state of shock.  He had dropped everything to help her and he had cared more for her than himself. Now he was in handcuffs.  He was taken back to the military and separated very quickly.  After being returned to the military from being AWOL he had no interaction with a military or civilian attorney.  He was never read his Article 31 rights.  He was handed his DD Form 214 and told that he was no longer in the Army.  He signed a lot of papers coming in to the Army and he is sure he signed papers going out, but he does not remember signing any Chapter 10 paperwork. He does not remember anyone reading him a charge sheet, maximum punishment, and the effects of an "other than honorable conditions discharge."  He also does not remember meeting with any attorney.

	d.  After discharge, he had a hard time.  His life unraveled and he was for all purposes homeless.  He bounced around until he started to do construction and other short-term jobs to get back on his feet.  He worked for small contractors who would find a job in his line of work and get a crew together to complete the work.  As soon as the job was done, he would look for another job.  He learned some indoor construction skills, which was helpful because he lost many jobs because of his back problems.  Now, his back has finally given out and he depends on social security and the Department of Veterans Affairs (VA) pension. He volunteers a small amount of time each day checking on some senior citizens to see if he can do some small things for them.  He is currently in the VA Rehabilitation Center in Washington DC, and has been diagnosed with prostate cancer.  He is in the process of receiving chemotherapy.  To compound matters, he broke his neck before he was admitted while walking to church and slipping on the pavement.

	e.  He realizes that his appeal before the Board is not timely but he asks the Board to consider his case and he knows his case is old but he does not remember signing any documents allowing the Army to discharge him with a chapter 10 and he did not know about the paperwork until he called his attorney. He wants to restore his dignity and honor not only for himself but also for his family.

19.  He provides a statement from his daughter who indicated the applicant is lying in a hospital fighting cancer, a broken neck, and numbness in his hands, and feet.  He only wants an upgrade to restore his honor and dignity.  He served a very long time ago and whatever issues he had in the military at the time, enough time has passed for the Army to reconsider. 

20.  He provides VA medical records with multiple words highlighted, including a diagnosis of metastatic prostate cancer, neck pain and issues with the cervical spine, back pain and issues with the lumbar spine, compression in the L3/L4/L5, thoracic spine issues, degenerative changes in the cervical and thoracic spine, and compression fracture of the L3.

21.  AR 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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.  Although an honorable or general discharge is authorized, an under other than honorable conditions discharge is normally considered appropriate.

	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.  

22.  AR 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve.  Table 3-1 included a list of the Regular Army RE codes:

	a.  RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.

	b.  RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible for enlistment unless a waiver is granted.

	c.  RE-4 applies to Soldiers who are separated from their last period of service with a nonwaivable disqualification.  They are ineligible for enlistment.

23.  AR 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  SPD Codes were previously called SPN codes. The SPN code of 246 (and now the SPD code KFS) is the appropriate code to assign to Soldiers separated under the provisions of AR 635-200, chapter 10, in-lieu of trial by court-martial.  

24.  AR 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice and/or direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record.  Chapter 2 provides for the ABCMR’s establishment and functions.  It states in: 

	a.  Paragraph 2-2, the ABCMR will decide cases on the evidence of record.  It is not an investigative body.  The ABCMR may, in its discretion, hold a hearing.  

	b.  Paragraph 2-11 states applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires. 

	c.  Paragraph 2-15 (Reconsideration of an ABCMR decision) an applicant may request the reconsideration of an ABCMR decision under the following circumstances:

		(1)  If the ABCMR receives the request for reconsideration within 1 year of the ABCMR’s original decision and if the ABCMR has not previously reconsidered the matter, the ABCMR staff will review the request to determine if it contains evidence (including, but not limited to, any facts or arguments as to why relief should be granted) that was not in the record at the time of the ABCMR’s prior consideration.  If new evidence has been submitted, the request will be submitted to the ABCMR for its determination of whether the new evidence is sufficient to demonstrate material error or injustice.  If no new evidence is found, the ABCMR staff will return the application to the applicant without action.

		(2)  If the ABCMR receives a request for reconsideration more than 1 year after the ABCMR’s original decision or after the ABCMR has already considered one request for reconsideration, then the case will be returned without action and the applicant will be advised the next remedy is appeal to a court of appropriate jurisdiction.

DISCUSSION AND CONCLUSIONS:

1.  The applicant and counsel request:

* reconsideration of his previous request for an upgrade of his under other than honorable conditions discharge
* a personal hearing

* correction of his DD Form 214 to show his reason and authority for separation as AR 635-200, chapter 5 in-lieu of chapter 10, AR 635-200, and SPN 246

2.  The applicant's request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the ABCMR.  Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

3.  The applicant’s records show he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of AR 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.  Further, his discharge accurately reflects his overall record of service.

4.  With respect to the applicant and counsel's arguments: 

	a.  Court-martial charges were in fact preferred against the applicant.  This is clearly evident in several steps throughout the separation process.  

		(1)  First, 30 days after going AWOL, his parent unit at Fort Dix initiated a charge sheet charging him with one specification of being AWOL from on or about 1 August 1969 to an unknown date.  

		(2)  Second, his records contain a 1AA Form 515 (Transmittal of Court-Martial Charges), dated 15 August 1972, that shows upon return from being AWOL, the commander, Company B, U.S. Army Personnel Control Facility, Fort Meade submitted the court-martial charge sheet (DD Form 458) and supporting evidence and recommended trial by a general court-martial, empowered to adjudge a dishonorable discharge or a bad conduct discharge  

		(3)  Third, the IO clearly investigated the facts and circumstances surrounding the applicant's AWOL and requested sworn statements from the applicant's defense counsel. 


		(4)  Fourth, a request for voluntary discharge under chapter 10 can only be triggered if court-martial charges have been preferred against the member.
 
	b.  Contrary to his contention and that of his counsel that he does not remember signing any documents or that he consulted with counsel: 

		(1)  The available evidence clearly shows the applicant violated the UCMJ and that is why court-martial charges were preferred against him.  It also clearly shows he was not denied any due process.  He did in fact consult with counsel (CPT B--- W. R---, JAGC) on 15 August 1972, who explained to him his rights, the elements of the offenses for which he was charged, the maximum punishments of his offenses, and the implications of choosing a chapter 10 discharge.  Only then did he voluntarily request the chapter 10 discharge and he acknowledged that he was making this request of his own free will.  

		(2)  The format of his request for voluntary discharge is similar to the format stipulated in AR 635-200 in effect at the time.  This request is filed in his DA Form 201 (Military Personnel Records Jacket), also known as the 201 file.  In his request, the applicant voluntarily chose discharge in lieu of a court-martial that could have adjudged a bad conduct discharge or a dishonorable discharge.  He could have elected trial by a court-martial if he believed he was innocent of the charges.

		(3)  The applicant's discharge occurred in 1972, over 45 years ago.  It is reasonable that the applicant does not remember all that happened then.  Nonetheless, his 201 file contains his AWOL charge, notification of his next of kin, charge sheet, a form titled "Absentee Wanted by the Armed Forces," his return to duty form, termination of apprehension form, his voluntary request, his separation orders, and his DD Form 214.  

5.  Based on his record of indiscipline (extensive history of AWOL), his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct rendered his service unsatisfactory.  Therefore, there is no basis for upgrading his discharge to either an honorable or a general discharge.

6.  The Army does not now have nor did it ever have a policy wherein a characterization of service or the reason for separation is changed due to the passage of time.  The evidence of record confirms that his narrative reason for separation and separation code were assigned based on the fact that he was discharged under the provisions of AR 635-200, chapter 10, in-lieu of trial by court-martial.  Absent the offense for which he was charged, there was no reason to prefer court-martial charges against him, and absent the court-martial charges, there was no reason to process his discharge.  

7.  The narrative reason and separation code associated with this type of discharge are "In Lieu of Trial by Court-Martial" and SPN "246."  Additionally, the appropriate RE code associated with this reason and separation code was RE-3 (it is RE-4 now).  Therefore, he received the appropriate reason and RE code associated with his discharge and he is not entitled to the requested relief.

8.  The applicant and his counsel have not shown an error or an injustice that require correction.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x____  ___x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  As to the characterization of service, 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 AR2000036002, on 10 May 2000.

2.  As to the new issues (narrative reason for separation, RE Code, and personal hearing), the evidence presented does not demonstrate the existence of an error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual.


      ________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)                                         AR20150000347



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ABCMR Record of Proceedings (cont)                                         AR20150000347



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