RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 February 2007
	DOCKET NUMBER:  AR20060009821


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


Mr. Carl W. S. Chun

Director

Ms. Antoinette Farley

Analyst

The following members, a quorum, were present:


Mr. James E. Anderholm

Chairperson

Mr. Jerome L. Pionk

Member

Mr. Edward E. Montgomery

Member

	The Board considered the following evidence:


	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his under other than honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states that, in 1999, he was young, made stupid choices without thinking of the consequences, and had a lot of family problems which included the death of his father.  The applicant continues that with the loss of his father his guidance was gone even though his intentions were good.  

3.  The applicant states he is asking for a change in his discharge because of his good service while in the Reserve and the Army National Guard.  The applicant further states that the choices he made while on Active Duty were not very good and while absent without leave (AWOL) he did voluntarily turn himself into the proper authorities.

4.  The applicant provides no additional documentary evidence in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 6 April 1999, the date of his discharge.  The application submitted in this case is dated 5 July 2006.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant's military records show prior to the period of service under review he entered the United States Army Reserve on 28 December 1994 and was separated on 27 January 1995 for failure to meet procurement medical fitness standards with an uncharacterized discharge.

4.  On 4 April 1995, the applicant entered the Washington Army National Guard (WAARNG).  On 5 April 1995, the applicant was ordered to active duty for training.  He completed basic training and advanced individual training, and was awarded 
military occupational specialty 63B (Light Wheel Vehicle Mechanic).  On 7 July 1995, the applicant was released from active duty for training and transferred to the Washington Army National Guard (WAARNG) with an uncharacterized discharge.  

5.  The applicant's records show he received the Army Service Ribbon.  The applicant's records do not show any significant acts of valor during his military service.

6.  The applicant's records contain a notification letter from the 951st Maintenance Company, Camp Murray, Tacoma, Washington, dated 9 September 1997.  The letter notified the applicant that he was charged with two periods of unexcused absence for failing to attend the unit training assembly (UTA) conducted by his unit.  The letter also informed him that if he accumulates 4 unexcused absences within a one year period, he will be ordered to active duty for a period of 24 months or less.

7.  The applicant's records shows that, on 1 October 1997, he enlisted in the Regular Army as a Light Wheel Vehicle Mechanic.  

8.  Headquarter Military Department State of Washington, Office of the Adjutant General, Camp Murray, Tacoma, Washington, Orders Number 235-072, dated 23 August 1998, shows the applicant was honorably discharged from the Army National Guard and the Reserve of the Army.  

9.  On 25 November 1998, charges were preferred against the applicant for being AWOL during the period 17 September 1998 through 16 November 1998.  Records show that the applicant consulted with legal counsel and was 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 a discharge under other than honorable conditions, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial. 

10.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges 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 Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.   

11.  Records also show that the applicant indicated that he did not desire to have a separation medical examination and elected not to submit a statement in his own behalf.  

12.  On 6 April 1999, the separation authority approved the applicant's request for discharge and directed that he receive an under other than honorable condition discharge.  

13.  On 6 April 1999, the applicant was discharged accordingly.  His DD Form 214 shows he completed 1 year, 4 months, and 6 days of creditable active military service and that he accrued 59 days of lost time due to AWOL during the period covered by the report. 

14.  On 29 March 2006, the Army Discharge Review Board (ADRB) denied the applicant's request for upgrade of his discharge.  The ADRB determined that the under other than honorable conditions discharge was proper. 

15.  Army Regulation 635-200 (Personnel Separations) 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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

16.  Army Regulation 635-200, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

17.  Army Regulation 635-200, 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

18.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  The U.S. Court of Appeals, observing that applicants to the ADRB are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (AR 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 3-year limit on filing to the ABCMR should commence on the date of final action by the ADRB.  In complying with this decision, the Board has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his under other than honorable conditions discharge should be upgraded to an honorable discharge because he was young, made stupid choices without thinking of the consequences, had lots of family problems, and successfully completed two prior periods of good service.  

2.  Evidence of records show the applicant was 20 years old when he initially entered the Army and was 21 years old at the time the offenses occurred.  There is no evidence that indicates that the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

3.  Although the applicant contends that he had family problems there is no evidence in the available records and the applicant has not provided sufficient evidence which shows he sought assistance from his chain of command or any other individual for assistance with any personal family issues.  There is also no evidence in the available records which shows this was the cause of his indiscipline.

4.  The applicant's record shows that his prior periods of service included two uncharacterized discharges and an honorable discharge.  

5.  The applicant's service record shows that charges were preferred against him for being AWOL and that he voluntarily requested discharge in lieu of a trial by court-martial.

6.  Additionally, discharge under the provisions of Chapter 10 of Army Regulation 635-200 requires an admission of guilt to the offenses charged and usually results in a discharge under other than honorable conditions.  

7.  Records show the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  Lacking evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  


8.  The applicant's records show that he had 59 days of lost time due to being AWOL.  Based on this record of indiscipline, the applicant's service clearly does 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 either a general or an honorable discharge.

9.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

10.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 29 March 2006.  As a result, the applicant is within the 3-year statute of limitations.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_JEA____  _JLP___  __EEM___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that 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 for correction of the records of the individual concerned.




_James E. Anderholm___
          CHAIRPERSON




INDEX

CASE ID
AR20060005894
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070206
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.