IN THE CASE OF:	  

		BOARD DATE: 	        4 June 2009

		DOCKET NUMBER:  AR20090000105 


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 that his under other than honorable conditions (UOTHC) discharge be changed to an uncharacterized discharge and the reason for his discharge be changed to entry level status (ELS).

2.  The applicant states, in effect, that he was issued an UOTHC discharge despite the fact that he was in ELS.  The applicant states his characterization should have been determined by his service as a whole, and not based on one incident.  At that time, he was a young 22-year old who barely passed the Army entry tests and struggled to understand and speak English during basic training.

3.  The applicant states that going absent without leave (AWOL) from basic combat training as a trainee does not qualify to be the same class of offenses described in Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  Trainees in basic training are under a different and more intense environment than those who move on to their permanent duty station.  A trainee in basic training is equivalent of a juvenile in civilian life; meaning punishment is ordinarily less severe because the trainee is not yet a Soldier.  

4.  The applicant states that almost all trainees can take the pressure of basic combat training and continue to an honorable career, but if a recruit does not behave in a manner expected by the Army during basic training, regulations clearly call for an entry-level separation as a rule, not as an exception.  The applicant states that going AWOL was a serious offense and he understands 

there must be consequences, but those consequences should not extend for the remainder of his/her natural life. 

5.  The applicant provides four pages from Army Regulation 635-200; a DA Form 3286-59 (Statement for Enlistment - U.S. Army Enlistment Program - U.S. Army Delayed Enlistment Program), dated 28 February 1996; a letter to the applicant's mother from the commander of A Company, 2nd Battalion, 54th Infantry, dated
5 May 1996; a DD Form 458 (Charge Sheet), dated 25 June 1996; an ATZK-PM Form 3949 (Characterization of Service Checklist for Administrative Discharge Actions), prepared on 15 September 1998; and the approval endorsement of the applicant's request for discharge by the Commander, U.S. Army Garrison, Fort Knox, Kentucky, dated 16 October 1998.

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.  The applicant enlisted in the Regular Army (RA) on 28 February 1996.  He did not complete basic training 

3.  A DD Form 458, dated 6 May 1998, shows charges were preferred against the applicant for being AWOL for the period 27 May 1996 to 4 May 1998.

4.  After consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200.  The applicant indicated in his request that he understood he could be discharged UOTHC; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all benefits administered by the Department of Veterans Affairs; and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life.  


5.  The applicant submitted a statement in his own behalf in which he stated, "I was assigned to D 2/54 Inf. Ft Benning GA.  At the time my absence started, I had less than six months in the Army and was having severe financial problems and family illness."  The applicant continued that based on the above he was requesting an entry-level separation.

6.  On 29 October 1998, the appropriate authority approved the applicant's request for discharge for the good of the service.  He directed that the applicant be issued an UOTHC discharge.  

7.  On 18 November 1998, the applicant was discharged from active duty and was issued an UOTHC characterization of service based on the provisions of chapter 10 of Army Regulation 635-200.  He had completed 9 months and 4 days of creditable active service with 707 days of lost due to being AWOL.  

8.  Item 12c (Net Active Service this Period) of the applicant's DD Form 214 shows 9 months and 4 days of active service.  Item 24 (Character of Service) shows the entry "UNDER OTHER THAN HONORABLE CONDITIONS."  Item 28 (Narrative Reason for Separation) shows the entry "IN LIEU OF TRIAL BY COURT-MARTIAL," and item 29 (Dates of Time Lost During this Period) shows the entry "UNDER 10 USC 972 [Title 10, U.S. Code, section 972]:  19960527 – 19980503 [27 May 1996 to 3 May 1998].

9.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 20 September 2000, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined that the applicant's reason for discharge was proper and equitable and that the discharge was properly characterized.

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, at any time after the charges have been preferred, 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. An UOTHC discharge is normally considered appropriate.

11.  Army Regulation 635-200, chapter 11, establishes policy and prescribes procedures for separating members because of unsatisfactory performance or 
conduct while in an-entry level status.  It states, in pertinent part, that separation 
under this chapter applies to Soldiers who are in ELS and, before the date of the initiation of separation action, have completed no more than 180 days of continuous active duty and have demonstrated that they cannot or will not adapt socially or emotionally to military life.  ELS is defined as the first 180 days of continuous active duty.  It further states that the character of service for members separated under the provisions of this chapter will be uncharacterized except when a characterization of UOTHC is authorized and is warranted by the circumstances of the case.

12.  Army Regulation 635-200, paragraph 3-9a(1), states a separation will be described as entry-level with service uncharacterized if processing is initiated while a Soldier is in an entry-level status, except when characterization under other than honorable conditions is authorized under the reason for separation and is warranted by the circumstances of the case.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his UOTHC discharge should be to changed to an uncharacterized discharge and that his reason for discharge be changed to ELS was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  By regulation a separation will be described as entry-level with service "Uncharacterized" if at the time the separation action is initiated the Soldier has less than 180 days of continuous active duty service.  Further, an "Uncharacterized" description of service is not authorized when an UOTHC characterization is authorized under the reason for separation and is warranted by the circumstances of the case. 

3.  The applicant was separated under the provisions of chapter 10, Army Regulation 635-200 for the good of the service in lieu of trial by court-martial.  He was charged with being AWOL for 707 days, circumstances which clearly warranted an UOTHC discharge.

4.  The applicant's DD Form 214 confirms he was separated under these provisions of the regulation, and that he received an UOTHC discharge.  Considering the length of his AWOL, the circumstances of his case do not warrant his receiving an "Uncharacterized" description of service.  

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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.  


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
      
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)                                         AR20090000105



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ABCMR Record of Proceedings (cont)                                         AR20090000105



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