IN THE CASE OF: BOARD DATE: 24 November 2015 DOCKET NUMBER: AR20150004396 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 the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Number AC96-09604 on 30 October 1996. Specifically, he requests an upgrade of his characterization of service, from under other than honorable conditions to under honorable conditions (general). 2. The applicant states, in effect, he went absent without leave (AWOL) because his life was being threatened by gang members. He felt, at the time, that going AWOL was the best way to protect his life. After he went AWOL, he made contact with his chain of command to explain the situation so that he could be reassigned from his unit upon his return; however, he was informed he had been dropped from the rolls. He did not wish to be discharged; his chain of command told him discharge was his only option. 3. The applicant provides a self-authored statement. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the (ABCMR) in Docket Number AC96-09604 on 30 October 1996. 2. The applicant provides a self-authored statement that he considers to be a new argument. This argument was not previously considered by the Board; therefore, it warrants consideration. 3. After having previous honorable service, the applicant reenlisted in the Regular Army on 25 March 1980. He held military occupational specialties 11B (Infantryman) and 64C (Motor Transport Operator). 4. His DA Form 2-1 (Personnel Qualification Record – Part II) shows he was reported as AWOL during the period 27 July 1982 to 15 September 1982 (52 days). He was dropped from the rolls of the Army during this period. 5. He consulted with legal counsel on 20 September 1982 and was advised that his command was contemplating a trial by court-martial, he was also advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him. Subsequent to receiving this legal counsel and without coercion, 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. 6. In this request for discharge, he indicated he understood that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. 7. His record contains a DD Form 458 (Charge Sheet), dated 21 September 1982, that shows court-martial charges were preferred against him for being AWOL from on or about 27 July 1982 through on or about 16 September 1982. 8. The separation authority approved his request for discharge on 14 October 1982, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial. The separation authority directed his reduction to the lowest enlisted rank/grade and his discharge under other than honorable conditions. 9. The applicant was discharged from the Army on 25 October 1982. The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, chapter 10, with an under other than honorable conditions discharge. 10. The Army Discharge Review Board reviewed his discharge on 19 September 1996, and after careful consideration of his military records and all other available evidence, determined he was properly discharged and denied his request for an upgrade. 11. The ABCMR reviewed his discharge on 30 October 1996, and after careful consideration of his military records and all other available evidence, determined he was properly discharged and denied his request for an upgrade. 12. Army Regulation 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 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 states 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 states 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 request for an upgrade of his service characterization, from under other than honorable conditions to under honorable conditions (general), was carefully considered. 2. The evidence of record shows he was AWOL for 52 days and during that period of lost time, he was dropped from the rolls of the Army. Upon his return to military control, he voluntarily requested discharge in lieu of trial by court-martial. 3. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. The evidence shows that after receiving the advice of legal counsel, he voluntarily requested discharge for the good of the service 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. 4. Based on his 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. In accordance with Army Regulation 635-200, paragraph 3-7, his service did not meet the criteria for a general or an honorable characterization of 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 AC96-09604, dated 30 October 1996. _______ _ 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) AR20150004396 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004396 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1