DOCKET NUMBER:  AR20090002031 


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 a change to the reason and character of his discharge.

2.  The applicant states, in effect, he was injured during basic training, sent to a rehabilitation unit, (i.e., the 30th Adjutant General Battalion, Fort Benning, Georgia), and granted 30 days leave.  He adds that being young and immature he failed to return to his unit at the end of his leave, he became worried that his return would lead to criminal penalties, determined that it was best not to go back to his unit, and eventually reported to Fort Sill, Oklahoma, for processing.  The applicant states he comes from a long line of career veterans and would like to serve in the United States military; however, now he cannot because of his discharge.  He concludes by asking that his discharge be upgraded to the minimum acceptable standard for reentry into the U.S. Army and it is his understanding that an uncharacterized entry level status discharge would be sufficient.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve (USAR) on 30 January 2004 for a period of 8 years in the Delayed Entry Program.  He was discharged from the USAR on 8 March 2004 and enlisted in the Regular Army (RA) on 9 March 2004 for a period of 3 years and 16 weeks.  Records show the applicant was    20 years of age at the time of his enlistment.
2.  A DD Form 458 (Charge Sheet), dated 23 September 2004, shows that charges were preferred against the applicant for absence without leave (AWOL) from 30 July to 20 September 2004.

3.  On 24 September 2004, the applicant requested a discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 (Discharge in Lieu of Trial by Court-Martial).  The applicant’s request for discharge states he had not been subject to coercion with respect to his request for discharge and he acknowledged guilt to the offense charged.  It states he was afforded the opportunity to consult with counsel, that he was advised he may be discharged under other than honorable conditions, 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, that he may be deprived of his rights and benefits as a veteran under both Federal and State law, and that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  It also states he was advised that he may submit any statements he desired in his own behalf which would accompany his request for discharge; however, the applicant elected not to submit statements in his own behalf.  The applicant’s commander recommended approval and issuance of a discharge under other than honorable conditions.

4.  On 17 November 2004, the separation authority approved the applicant’s request for discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  The commander also directed the applicant be reduced to the lowest enlisted grade and furnished an under other than honorable conditions discharge.

5.  The applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 6 December 2004 in accordance with the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, and his service characterized as under other than honorable conditions.  At the time he had completed 7 months and 6 days of net active service.  The
DD Form 214 also shows the applicant had 52 days of time lost.

6.  A DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated 15 April 2007, shows the applicant requested upgrade of his under other than honorable conditions discharge to a general, under honorable conditions discharge.  On 30 April 2008, the Army Discharge Review Board (ADRB), after careful consideration of the applicant’s military records and all other available evidence, determined the applicant’s discharge was proper and equitable.  The ADRB also noted the applicant’s issue (i.e., to allow for reenlistment in the U.S. Army), found that he was appropriately assigned a Reentry Eligibility (RE) Code of "4," that an RE Code of "4" cannot be waived, and that the applicant is no longer eligible for reenlistment.  Accordingly, the applicant’s appeal was denied and he was notified of the ADRB’s decision.

7.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the Uniform Code of Military Justice.  A punitive discharge is authorized for offenses under Article 86 for periods of AWOL in excess of 30 days.

8.  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 discharge under other than honorable conditions is normally considered appropriate.

9.  The Glossary, Section II (Terms), of Army Regulation 635-200, defines entry-level status for RA Soldiers as the first 180 days of continuous active duty.

10.  Army Regulation 635-200, paragraph 3-9 (Uncharacterized separations), provides, in pertinent part, that a separation will be described as an entry level separation with service uncharacterized, if processing is initiated while a Soldier is in 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 contends, in effect, the reason and character of his discharge should be changed to an entry level status, uncharacterized discharge because he was young and immature at the time and he would like to reenter and serve in the United States Armed Forces.

2.  The applicant's contention that he was young and immature at the time is not sufficiently mitigating to warrant relief.  The Board notes that the applicant was
21 years of age before any negative incidents are documented.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

3.  The applicant entered active duty on 9 March 2004, requested a discharge on 24 September 2004, and he was discharged on 6 December 2004.  Thus, records confirm that the applicant was not in an entry level status at the time he requested a discharge (i.e., 195 days) or at the time of his discharge when he had completed 7 months and 6 days (i.e., 216 days) of net active service.  Therefore, the applicant is not entitled to correction of his DD Form 214 to show an entry level status, uncharacterized discharge.

4.  The applicant’s request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was voluntary, administratively correct, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.  In addition, the character of the discharge is commensurate for the applicant's offense.  Therefore, considering all the facts of the case, the type of discharge and character of service were appropriate.

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.  Therefore, in view of all of the foregoing, 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
      
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)                                         AR20090002031



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ABCMR Record of Proceedings (cont)                                         AR20090002031



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