RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 November 2007
	DOCKET NUMBER:  AR20070010013 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Mr. John T. Meixell

Chairperson

Ms. Jeanette R. McCants

Member

Mr. Scott W. Faught

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 an upgrade of his discharge. 

2.  The applicant states that his discharge was inequitable because it was based on one incident of poor judgment in 24 months of service and that he was properly disciplined for that.  After that incident, he did not feel safe and felt threatened.  He states that he received threatening statements of bodily harm from higher command.  He concludes that the pressure of threats coupled with the harsh treatment and having family crying out for help, clouded his judgment and overtook his character.   

3.  The applicant did not provide any additional documentary evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  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 it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  With prior service in the Army National Guard, the applicant’s records show that he enlisted in the Regular Army on 15 February 2000.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 31B (Military Police).  The highest rank he attained during his military service was the grade of private first class (PFC)/pay grade E-3. 

3.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the UCMJ on 6 April 2000, while assigned to the 258th Military Police Company, 519th Military Police Battalion, Fort Polk, Louisiana, for being absent without leave (AWOL) during the period on or about 4 March 2000 through on or about
6 March 2000.  His punishment consisted of reduction to the grade of private/pay grade E-1, forfeiture of $234 pay for one month, 14 days of restriction, and 14 days of extra duty.

3.  On 8 March 2000, while stationed at Fort Polk, Louisiana, the applicant was reported AWOL.  He was dropped from the rolls (DFR) of the Army on 7 April 2000.  

4.  On 17 April 2000, court-martial charges were preferred against the applicant for one specification of being AWOL during the period from on or about 4 March 2000 to on or about 6 March 2000 and during the period from on or about
8 March 2000 to on or about 6 April 2000 and one specification of being AWOL during the period 17 April 2000 through an undetermined date.

5.  The applicant surrendered to military control on 10 July 2001 at Fort McPherson, Georgia.  He was transferred to Fort Knox, Kentucky.  However, shortly after arrival at Fort Knox, Kentucky, he was reported AWOL again on 13 July 2001. 

6.  On 2 April 2002, the Chief, Criminal Law Division, Fort Knox, Kentucky, requested a delay in Court-Martial Proceedings in the applicant’s case due to his AWOL status.  The delay, beyond the normal 120 day after referral of charges, was appropriate because the unauthorized absence prevented further processing of charges or proceeding to trial by court-martial for as long as the applicant was AWOL.  The Special Court-Martial Authority approved the request on 4 April 2002 and granted a delay.

7.  On 1 August 2003, the applicant was apprehended by civilian authorities in Minden, Louisiana, and returned to military control.  He was transferred to Fort Sill, Oklahoma.  

8.   On 21 August 2003, court-martial charges were preferred against the applicant for four specifications of being AWOL during the period from on or about 4 March 2000 to on or about 6 March 2000, from on or about 8 March 2000 to on or about 6 April 2000; from on or about 7 April 2000 to on or about 10 July 2001; and from on or about 13 July 2001 to on or about 1 August 2003.  

9.  On 22 August 2003, 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 UCMJ, the possible effects of a discharge under other than honorable conditions discharge if his request was approved, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

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 discharge or a dishonorable discharge.  He further acknowledged he understood that if the 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.  The applicant elected not to submit a statement on his own behalf and waived his right to a physical examination prior to separation.

11.  On 23 October 2003, the immediate commander recommended approval of the applicant’s request.  In his memorandum, he stated that the applicant was charged with four specifications of AWOL totaling 1,239 days and that the applicant had become disillusioned with the military.  He further recommended discharge under other than honorable conditions.

12.  On 27 October 2003, the separation authority approved the applicant's request for discharge and directed that he receive an Under Other Than Honorable Conditions Discharge Certificate and be reduced to the grade of private/pay grade E-1.  On 13 March 2004, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued confirms he completed a total of 1 month and 4 days of creditable active military service with 1,239 days of lost time due to AWOL.

13.  There is no indication in the applicant’s records that he was threatened, his life was in danger, or that he was coerced by his chain of command or higher headquarters. 

14.  On 28 July 2006, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to an upgrade of his discharge.

2.  There is no evidence in the applicant's record that he encountered any threats or harsh treatment by his chain of command or that his life was in danger.  There is no evidence that what the applicant described as threat to his life during his military service contributed to his repeated patterns of misconduct and indiscipline.  The records further do not show that the applicant encountered or addressed any family problems with his chain of command or with any supporting facilities at the installation to which he was assigned.  

3.  The evidence of record shows that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with legal counsel, the applicant voluntarily, and in writing, requested separation from the Army under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by a court-martial.  By doing so, the applicant admitted guilt to the offense of being AWOL.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

4.  There is no evidence in the available records nor did the applicant provide documentation to substantiate an upgrade of his discharge.  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 did not submit evidence that would satisfy that requirement.  Based on his 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, the applicant is not entitled to either a general or an honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__jtm___  __jrm___  __swf___  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.




							John T. Meixell
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070010013
SUFFIX

RECON

DATE BOARDED
20071129
TYPE OF DISCHARGE
(UOTHC)
DATE OF DISCHARGE
20040315
DISCHARGE AUTHORITY
AR 635-200, Chap 10
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.