IN THE CASE OF:	  

		BOARD DATE:	       25 August 2009

		DOCKET NUMBER:  AR20090006017 


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, in effect, that his uncharacterized discharge be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, the Army Discharge Review Board (ADRB) indicated he was offered counsel, which he does not recall.  He claims he was processed for separation on a weekend and was never offered counsel, which he would not have refused.  He also states he and another person being processed were informed they would be eligible for an HD in 6 months. 

3.  The applicant provides no additional documentation 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.  The applicant's record shows he enlisted in the Regular Army (RA) and entered active duty on 10 January 1996.  His record also shows he never completed advanced individual training (AIT) and was never awarded a military occupational specialty (MOS).  His record further shows he earned the Expert Marksmanship Qualification Badge with Hand Grenade Bar and Marksman Marksmanship Qualification Badge with Rifle Bar.  His record documents no acts of valor or significant achievement.  

3.  On 10 January 1996, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being absent without leave (AWOL) from 26 April through 29 May 1996.  

4.  On 3 June 1996, the applicant consulted with legal counsel, a Judge Advocate General (JAG) attorney, a captain, and was advised of the basis for the contemplated trial by court-martial, the effects of his uncharacterized discharge, and of the rights available to him.  Subsequent to receiving this legal counsel the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  The discharge counseling and request was authenticated with the signatures of both the applicant and the JAG attorney.  
   
5.  On 1 July 1996, the separation authority approved the applicant’s request for discharge under the provisions of chapter 10, Army Regulation 635-200, and that his service be described as "uncharacterized" based on his being in an entry level status (ELS).  On 24 September 1996, the applicant was discharged accordingly.  

6.  The DD Form 214 issued to the applicant upon his discharge shows he was separated under the provisions of Chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for the good of the service – in lieu of court-martial, and that he received an uncharacterized description of service.  It further shows that at the time he had completed 7 months and 
12 days of creditable active service during the period covered by the DD Form 214 and that he had accrued 32 days of time lost due to AWOL.  

7.  On 16 January 2009, the ADRB,  after careful consideration of the applicant's military records and all other available evidence, determined that the applicant's discharge was proper and equitable and it voted to deny his request for a change to the characterization of his service and/or to the reason for his separation.  


8.  Army Regulation 635-200 (Personnel Separation Enlisted Personnel) 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 separation authority can authorize a general, under honorable conditions discharge (GD) or an honorable discharge (HD) if warranted by the member's overall record of service; however, a discharge under other than honorable conditions is normally considered appropriate for members separated under these provisions.  

8.  Paragraph 10-8, of Army Regulation 635-200 provides the types of discharge/ characterization of service a member who is separated under chapter 10 may receive.  It states in pertinent part, that for Soldiers who have completed ELS, an honorable discharge is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization would be improper.  It further states, in pertinent part, that when characterization of service under other than honorable conditions is not warranted for a Soldier in ELS, the Soldier's service will be "uncharacterized."  

9.  Army Regulation 635-200, paragraph 3-7a, provides that an HD 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.

10.  Army Regulation 635-200, paragraph 3-7b, provides that a GD 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 HD.  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's request that his uncharacterized discharge be changed to an HD was carefully considered.  However, there is insufficient evidence to support granting the requested relief.


2.  Contrary to the applicant's assertions that he was never offered counsel, the evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with defense counsel, which is documented in a form on file that was signed by both the applicant and his JAG legal counsel, he voluntarily requested discharge in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 

3.  The evidence of record also confirms the applicant was processed for separation in lieu of trial by court-martial at his own request, in order to avoid a trial by court-martial that could have resulted in him receiving a punitive discharge.  The separation authority approved his request and appropriately directed that he receive an uncharacterized character of service based on his entry level status.  Finally, the applicant’s discharge accurately reflects his overall record of short and undistinguished service.  

4.  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)                                         AR20090006017



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ABCMR Record of Proceedings (cont)                                         AR20090006017



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