IN THE CASE OF: BOARD DATE: 12 June 2012 DOCKET NUMBER: AR20110024751 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: * Contrary to the Board's Record of Proceedings (ROP), he did not accept nonjudicial punishment (NJP); he was told it was not an acceptance or admission of guilt * In regard to the court-martial charges, he did not go to the battery area because it was his understanding that he was not required to do so * Contrary to the ROP stating that charges were preferred against him and he admitted guilt, there is no evidence of this assumption; in any case he thought he was getting a trainee or a medical discharge * Although he was unable to find the meaning of his "JFS" Separation Code, it most likely referred to a medical discharge * He served in the Air National Guard (ANG) as well as the Army National Guard (ARNG) and he continues to serve today * He was never afforded counsel; he did not sign his DD Form 214 (Certificate of Release or Discharge from Active Duty); he suffered from a medical condition at the time; and his separation code does not exist * Changing his character of service would expand his benefits and allow him to serve in a different capacity 3. The applicant provides: * Standard Form 600 (Chronological Record of Medical Care) for treatment on 25 February, 2 March, and 10 March 1981 * DD Form 4 (Enlistment/Reenlistment Document) for enlistment in the ANG on 23 January 1996 * Reserve Order DA-00219, issued by Headquarters, Air Reserve Personnel Center, Denver, CO, dated 9 November 2001, based on his volunteering for reassignment * Army Commendation Medal certificate for the period 1 February 2009 through 31 January 2011 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 AR20100017116, on 12 January 2011. 2. The applicant submitted a new argument. He also submitted a medical document, an award certificate, and an enlistment contract in the ANG, which were not previously considered by the ABCMR. Therefore, they are considered new evidence and as such warrant consideration by the Board. 3. The applicant enlisted in the Regular Army on 17 February 1981 and he was assigned to Fort Sill, OK, for completion of training under the one station unit training (OSUT) program. 4. On 9 March 1981, his commander advised him that he was considering whether he should be punished under Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty, a violation of Article 86 of the UCMJ. His commander stated that in deciding what he wanted to do, the applicant had the right to consult with a lawyer located at Building Number 62 on Fort Sill. He had 72 hours to decide what to do. 5. On 9 March 1981, at a closed hearing, the applicant elected not to be tried by a court-martial and he accepted NJP under the provisions of Article 15 of the UCMJ. His punishment consisted of a forfeiture of pay and correctional custody. 6. He was advised that he had the right to appeal his punishment within 15 days to the next higher commander; however, he elected not to do so. 7. On 10 March 1981, he departed his training unit in an absent without leave (AWOL) status and on 9 April 1981, he was dropped from the Army rolls as a deserter. He returned to military control on 3 June 1981. 8. Subsequent to his return, court-martial charges were preferred against him for AWOL from on or about 10 March to on or about 9 June 1981. 9. The applicant' separation packet is available for review with this case. However, his record contains a DD Form 214 that shows he was discharged on 12 August 1981 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of a trial by court-martial with an under other than honorable conditions discharge. This form also shows he completed 3 months and 3 days of creditable active service with time lost from 10 March to 2 June 1981, which equates to 85 days. Additionally, this form shows in item 26 (Separation Code), the entry "JFS." 10. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitation. 11. He enlisted in the ARNG on 5 November 1993. He entered active duty for training (ADT) and he completed training for military occupational specialty 51T (Technical Engineer Specialty). He was released from ADT on 27 October 1995. 12. He enlisted in the ANG on 23 January 1996. 13. He submitted an SF 600 that shows he was seen for routine medical care related to foot pain on 2 March 1981 and stomach pain on 10 March 1981. 14. He also submitted an Army Commendation Medal certificate, dated 24 February 2011, that shows he was awarded the Army Commendation Medal for meritorious service with the Pennsylvania ARNG. 15. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. It states: 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. 16. Army Regulation 635-5-1 (Separation Program Designator (SPD)) Codes), in effect at the time, 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. It states that the SPD code "JFS" is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 10, by reason of "administrative discharge conduct triable by court-martial." DISCUSSION AND CONCLUSIONS: 1. With respect to the Article 15: a. The evidence of record confirms the commander administering the Article 15 proceedings determined the applicant committed the offense in question during a closed Article 15 hearing after considering all the evidence. By law and regulation, before finding a Soldier guilty during Article 15 proceedings, the commander must be convinced beyond a reasonable doubt that the Soldier committed the offense. The applicant could have elected trial by a court-martial if he believed he was innocent, however; the evidence of record confirms the applicant waived his right to a trial by court-martial and opted for a closed Article 15 hearing. b. The ABCMR does not normally reexamine issues of guilt or innocence under Article 15 of the UCMJ. This is the imposing commander’s function and it will not be upset by the ABCMR unless the commander's determination is clearly unsupported by the evidence. The applicant was given the right to consult with counsel and demand trial by court-martial. He was further afforded the opportunity to appeal the imposed punishment to the next higher authority, which he elected not to do. 2. With respect to the character of service: a. The applicant's record is void of the facts and circumstances that led to his discharge. However, his record contains a DD Form 214 that shows he was discharged on 12 August 1981 under the provisions of Army Regulation 635-200, chapter 10, with issuance of an under other than honorable conditions discharge. b. The issuance of a discharge under the provisions of Army Regulation 635-200, chapter 10 required the applicant to voluntarily, willingly, and in writing request discharge from the Army in lieu of trial by court-martial. It is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process. The applicant provided no information that would indicate the contrary. Further, it is presumed that the applicant's discharge accurately reflects his overall record of service. c. 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 also renders his service unsatisfactory. Therefore, he is not entitled to an upgrade of his discharge to either an honorable or a general discharge. 3. With respect to the separation code, the applicant's record indicates he was separated under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by a court-martial. It further shows that based on this authority and reason for separation he was appropriately assigned an SPD code of "JFS" in accordance with the applicable regulation in effect at the time. 4. With respect to the medical issue, the applicant provides an SF 600 that shows he was seen for routine medical issues. Nowhere does it show he was directed by medical authorities to depart his unit, absent himself from training, remain on quarters, or depart AWOL. 5. With respect to benefits, the ABCMR does not correct records solely for the purpose of establishing eligibility for programs or benefits. Each case is considered on its own merits. Additionally, the granting of veteran's benefits is not within the purview of the ABCMR and any questions regarding eligibility for health care and other benefits should be addressed to the Department of Veterans Affairs. 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 AR20100017116, dated 12 January 2011. __________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) AR20110024751 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110024751 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1