RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 February 2007
	DOCKET NUMBER:  AR20060010504 


	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.  


x

	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 (UOTHC) discharge be upgraded to a general or honorable discharge.  He also requests that his narrative reason for discharge be changed.

2.  The applicant states he wants his discharge changed because he wants to do something with his life.  He feels that the UOTHC discharge was unfair to him.  He knows he made mistakes by going AWOL [absent without leave] from basic training, but he was young and had a lot of family problems back home.  He would like to reenlist if he was allowed, but if not, he would like to go into law enforcement, which he cannot do unless his DD Form 214 (Certificate of Release or Discharge from Active Duty) is changed to a general discharge.

3.  The applicant provides no additional documents in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 23 August 2000.  The application submitted in this case is dated 26 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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  The ABCMR has elected to conduct a substantive review of this case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant enlisted in the Texas Army National Guard on 22 June 1999.  He was ordered to initial active duty for training (IADT) at Fort Knox, Kentucky on 11 August 1999 in military occupational specialty 19D (Armor Reconnaissance Crewman).  

4.  He went AWOL on 31 October 1999 and was apprehended by civilian authorities and returned to military control on 17 February 2000.

5.  On 22 February 2000, charges were preferred against the applicant for being AWOL from 31 October 1999 to 17 February 2000.

6.  On 24 February 2000, the applicant consulted with legal counsel and voluntarily requested discharge in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  In doing so, he admitted guilt to the offense charged and acknowledged that he might encounter substantial prejudice in civilian life and that he might be ineligible for many or all Army benefits administered by the Veterans Affairs (VA) if a UOTHC discharge was issued.  The applicant did not submit statements in his own behalf.

7.  On 2 August 2000, the separation authority approved the discharge under the provisions of Army Regulation 635-200, chapter 10 with issuance of a UOTHC discharge.

8.  On 23 August 2000, the applicant was discharged 24 June 1982 under the provisions of Army Regulation 635-200, chapter 10 in lieu of trial by court-martial with a UOTHC discharge.  He served 10 months and 13 days of total active service with 109 days of lost time.  

9.  On 6 July 2006, the Army Discharge Review Board (ADRB), by unanimous vote, denied the applicant’s request for an upgrade of his discharge.

10.  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 UOTHC discharge is normally considered appropriate.

11.  Army Regulation 635-200, paragraph 3-7, 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.

12.  Army Regulation 635-200, paragraph 3-7, 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.  

13.  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 (Army Regulation 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 ABCMR 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 date of application to the ABCMR is within three years of the decision of the ADRB; therefore, the applicant has timely filed.

2.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10 in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

3.  The applicant was advised of the effects of an UOTHC discharge.  He was afforded the opportunity to submit statements in his own behalf, but he declined to do so.

4.  The applicant's record of service shows he was AWOL for 109 days.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel for either a fully honorable or general discharge.  

5.  The applicant’s contentions have been noted.  However, he has failed to show through the evidence submitted or the evidence of record that the type of discharge or the narrative reason issued to him was in error or unjust.  Therefore, 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:

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.



x__________
          CHAIRPERSON




INDEX

CASE ID
AR20060010504
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070222
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
20000823
DISCHARGE AUTHORITY
AR635-200, chapter 10
DISCHARGE REASON
In lieu of trial by court-martial
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
110.0000
2.

3.

4.

5.

6.