IN THE CASE OF:	  

		BOARD DATE:	  20 October 2009

		DOCKET NUMBER:  AR20090005101 


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 discharge under other than honorable conditions be upgraded.

2.  The applicant states his discharge should be upgraded based on his good behavior in the last year.

3.  The applicant provides no additional evidence or official documentation in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military personnel records show he enlisted in the Regular Army on 5 May 1998 for a period of 3 years.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty 11B (Infantryman).

2.  On 16 December 1998, the applicant departed absent without leave (AWOL) and he was dropped from the rolls on 15 January 1999.  According to an Army Discharge Review Board (ADRB) Case Report and Directive, dated 5 September 2008, he was apprehended on 8 February 2007.

3.  On 2 April 2007, court-martial charges were preferred against the applicant for being AWOL during the period from on or about 16 December 1998 to on or about 8 February 2007.

4.  On 16 April 2007, the applicant voluntarily requested discharge in lieu of trial by courts-martial.  He acknowledged that he was making the request of his own free will and acknowledged that he was guilty of the offense with which he was charged.  He further acknowledged that he was afforded the opportunity to speak with counsel prior to making this request.  In his request, the applicant acknowledged that he was advised he may be furnished an Under Other Than Honorable Conditions Discharge Certificate; that he would be deprived of many or all Army benefits; that he may be ineligible for many or all Department of Veterans Affairs benefits; and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.

5.  On 20 April 2007, the applicant’s request for discharge was reviewed by a staff judge advocate who determined there were no legal objections to further processing of the applicant’s request.  

6.  On 20 April 2007, the appropriate authority approved the applicant's request for discharge in lieu of trial by court-martial and directed that he be furnished a discharge under other than honorable conditions.

7.  On 25 July 2007, the applicant was discharged under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by court-martial.   He had completed 1 year and 29 days of net active service that was characterized as under other than honorable conditions.  He had 870 days of time lost before his expiration of term of service (ETS) and 2,284 days time lost after his ETS.

8.  The applicant applied to the ADRB to upgrade his discharge.  On 
9 September 2008, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as under other than honorable conditions.

9.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the administrative 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 must include the Soldier's acknowledgement that the Soldier understands the elements of the offense(s) charged and that the Soldier is guilty of the charge(s) or of a lesser included offense therein contained which also authorized the imposition of a punitive discharge.  A discharge under other than honorable conditions is normally considered appropriate.
10.  Army Regulation 635-200 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.
 
11.  Army Regulation 635-200 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 discharge should be upgraded based on his good behavior.  However, he has not submitted any evidence to support his contention.  In addition, good post service conduct alone is not normally sufficient for upgrading a properly-issued discharge and the ABCMR does not upgrade discharges based solely on the passage of time.

2.  The applicant’s voluntary 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 administratively correct and in conformance with applicable regulations.  

3.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

4.  In view of the above, there is insufficient basis to upgrade the characterization of the applicant's discharge to honorable or to under honorable conditions.

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 that 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)                                         AR20090005101



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ABCMR Record of Proceedings (cont)                                         AR20090005101



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