IN THE CASE OF:	  

		BOARD DATE:	  20 October 2015

		DOCKET NUMBER:  AR20150003470 


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.  He also indicates he desires to appear before the Board.  

2.  The applicant states:

* in 1982, he was granted a semester of college and time off to attend classes as part of his reenlistment package
* the reenlistment sergeant told him to pick a college and a degree; he chose Central Carolina Community College
* he was unprepared for the class in trigonometry, so he dropped the course
* twelve weeks after dropping the course, he was called by his company commander who reported him absent without leave (AWOL) because he had not received permission to drop the course 
* the commander offered him a compromise:  a court-martial or leaving the military with an under other than honorable conditions discharge 
* he recently found himself without a job and lost health benefits; his character of service bars those benefits 
* he believes he served honorably, he was improperly counseled, and the choices his commander gave him were false 

3.  The applicant does not provide any additional evidence. 


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 AR20100017610, on 29 December 2010. 

2.  The applicant provides a new argument which, although not received within one year of the Board's original decision, as an exception to policy warrants consideration by the Board. 

3.  The applicant's records show he enlisted in the Regular Army on 5 March 1980 and he held military occupational specialty 35M (Multichannel Communications Equipment Operator). 

4.  He also completed the Basic Airborne Course around July 1980 and he was reassigned to the 82nd Signal Battalion, Fort Bragg, NC around August 1980.  He was promoted to specialist/E-4 on 1 September 1981. 

5.  He reenlisted on 14 September 1982.  His DD Form 4 (Enlistment/ Reenlistment Document) shows he reenlisted for the "Station of Choice" reenlistment option (Fort Bragg, NC).  

6.  On 8 October 1982, he departed his unit in an AWOL status.  He surrendered to military authorities at Fort Bragg on 6 December 1982.  

7.  The complete facts and circumstances surrounding the applicant’s discharge action are not available for review with this case.  However, his record contains the following documents:

	a.  An "Expulsion from U.S. Military Reservation" order ordering him by authority of the Deputy Installation Commander, XVIII Airborne Corps, to not enter Fort Bragg Military Reservation. 

	b.  Orders 27-83, issued by Headquarters, 82nd Airborne Division, on 9 February 1983 reducing him to the rank/grade of private/E-1 effective 3 February 1983. 

	c.  Orders 31-31, issued by Headquarters, 82nd Airborne Division, on 15 February 1983, reassigning him in the rank of private to the U.S. Army Separation Transfer Point, Fort Bragg, for separation outprocessing and discharge from the Army effective on or about 16 February 1983. 
	d.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged on 16 February 1983 under the under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of court-martial, with a character of service of under other than honorable conditions.  This form also shows he completed 2 years, 9 months, and 14 days of creditable active service and he had lost time from 8 October to 5 December 1982. 

8.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 

9.  On 29 December 2010, the Board denied his request for an upgrade of his discharge because the evidence he submitted did not demonstrate an error or an injustice.

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

	a.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  It 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.

11.  Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice.  The ABCMR decides cases on the evidence of record; it is not an investigative body.  The ABCMR may, in its discretion, hold a hearing.  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. 
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s record is void of the complete facts and circumstances that led to his voluntary discharge.  However, his record contains a DD Form 214 that shows he was discharged on 16 February 1983 under the provisions of chapter 10 of Army Regulation 635-200, in lieu of a court-martial with an under other than honorable conditions characterization of service. 

2.  The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200 required the applicant to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by a court-martial.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant has provided no information that would indicate the contrary.  Further, it is presumed that his discharge accurately reflects his overall record of service.

3.  The applicant's reenlistment contract shows he reenlisted for the current station stabilization option which essentially guaranteed him stabilization at Fort Bragg for 12 months.  There are no promises or options mentioned in relation to attending college. 

4.  His service does not appear to have met the standards of acceptable conduct and performance of duty for Army personnel and his misconduct appears to have rendered his service unsatisfactory.  He does not provide sufficient evidence to show the characterization service is in error or unjust. 

5.  His 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 are sufficient to render a fair and equitable decision.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

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 AR20100017610, dated 29 December 2010.



      _______ _   _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)                                         AR20150003470





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ABCMR Record of Proceedings (cont)                                         AR20150003470



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