IN THE CASE OF:	  

		BOARD DATE:	        20 October 2009

		DOCKET NUMBER:  AR20090007793 


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 upgrade of his under other than honorable conditions discharge to an honorable discharge or a general under honorable conditions discharge.

2.  The applicant states, in effect, that during his military service he was an honest and hardworking Soldier; he always took the initiative to complete all assigned tasks; and he received numerous awards and commendations for his exemplary service.  He adds that he never had any adverse actions taken against him or placed in his Official Military Personnel File (OMPF).

	a.  He states that he was an excellent Soldier, he achieved the rank/grade of sergeant (SGT)/E-5, and he took military correspondence and college courses to better position himself for further advancement.

	b.  He states that towards the end of his military service, personal issues that he was facing (i.e., divorce, child support, a child custody hearing, and financial problems) became too overwhelming and adversely impacted his professional life.  Specifically, "[he] had a baby on the way, the mother of the baby was threatening and harassing [him] and [his] now ex-wife was facing a divorce."  He was also faced with extreme financial hardship and a host of other problems.  As a result, a lot of [his] bad decisions outweighed the good ones and [he has] suffered the consequences of [his] actions.


   c.  He states he has endured the emotional and financial hardships caused by his actions and the consequences imposed by his chain of command.  He adds that he is not making excuses for his actions and concludes by requesting upgrade of the characterization of his discharge, which would then entitle him to veterans' benefits and alleviate a tremendous amount of spiritual, physical, emotional, and financial stress on him and his family.

3.  The applicant provides, in support of his application, copies of his DD Form 256A (Honorable Discharge Certificate), a DA Form 5689 (Oath of Reenlistment), a DA Form 4187 (Personnel Action), a DA Form 4872 (Certificate of Promotion), two DA Forms 4980-14 (Army Commendation Medal Certificates), three DA Forms 4980-18 (Army Achievement Medal Certificates), a DA Form 4950 (Good Conduct Medal Certificate), a Primary Leadership Development Course Diploma, a DA Form 1059 (Service School Academic Evaluation Report), a Letter of Commendation, a DA Form 705 (Army Physical Fitness Test Scorecard), a DA Form 3595-R (Record Fire Scorecard), eight Certificates of Appreciation, four Certificates of Training, two memoranda, two Course Completion Certificates, two Certificates of Appointment, a State of Georgia Certificate of Live Birth, and a petition letter.

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 and entered active duty in the Regular Army on
3 August 1994.  Upon completion of training, he was awarded military occupational specialty (MOS) 71D (Legal Specialist).  

3.  The applicant was honorably discharged on 16 April 1998.  He reenlisted for a period of 4 years on 17 April 1998.


4.  A DD Form 458 (Charge Sheet), dated 29 June 2000, shows that a noncommissioned officer assigned to the Special Processing Company, U.S. Army Personnel Control Facility, Fort Knox, KY, preferred charges against the applicant for being absent without leave (AWOL) from 24 March to 23 June 2000.

5.  On 29 June 2000, the applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 (Discharge for the Good of the Service).  The applicant's request for discharge states he had not been subject to coercion with respect to his request for discharge.  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 (VA), 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 document indicates that statements in his own behalf were not submitted with his request.  The immediate commander recommended approval of the applicant's request for discharge and the applicant was placed in an excess leave status.

6.  On an unspecified date in 2001, 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 Certificate.

7.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 7 November 2001 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 years and 4 days of net active service.

   a.  Item 18 (Remarks), in pertinent part, shows he had continuous honorable active service from 3 August 1994 to 16 April 1998.
   
   b.  Item 29 (Dates of Time Lost During This Period) shows he had time lost from 24 March to 22 June 2000.


8.  On 10 July 2003, the applicant submitted a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) to the Army Discharge Review Board (ADRB) requesting upgrade of his under other than honorable conditions discharge.  On 4 June 2004, the ADRB, after careful consideration of the applicant's military records and all other available evidence, determined the applicant's discharge was proper and equitable.  Accordingly, the applicant's request was denied and he was notified of the ADRB's decision.

9.  In support of his application, the applicant provides the following documents.

   a.  His Honorable Discharge Certificate that documents the applicant's honorable service from 3 August 1994 through 16 April 1998.

	b.  His Oath of Reenlistment that shows he reenlisted on 17 April 1998.

	c.  A personnel action form that shows the applicant was promoted to the rank/grade of specialist (SPC)/E-4 on 3 October 1996 and a certificate of promotion that shows he was promoted to the rank/grade of SGT/E-5 on 1 April 1999.

	d.  Two Army Commendation Medal Certificates and three Army Achievement Medal Certificates that document the applicant's meritorious service and achievements during the period 1 January 1995 to 30 August 1998.

   e.  An Army Good Conduct Medal Certificate that documents the applicant's exemplary behavior, efficiency, and fidelity from 3 August 1994 to 2 August 1997.

	f.  A Primary Leadership Development Course (PLDC) Diploma and a DA Form 1059 that show the applicant graduated from the PLDC at the Noncommissioned Officer School of Infantry, Fort Benning, GA on 18 March 1999.

	g.  A DA Form 705 and letter of commendation that show the applicant scored a total of 272 points on the APFT on 15 July 1997 and a total of 276 points on the APFT on 19 February 1999.

	h.  A DA Form 3595-R shows the applicant qualified expert with the M-16 rifle on 5 September 1997.

	i.  Eight certificates of appreciation, four certificates of training, two memoranda, and two course completion certificates that document the 

applicant's achievements, volunteer service, and completion of military, and civilian courses during the period from 8 September 1994 to 12 April 1999.

   j.  Two certificates of appointment that show the applicant served as a Notary Public in Muscogee County, GA, from 1 April 1996 through 31 March 2000 and in Fulton County, GA, from 15 September 1998 through 14 September 2002.

   k.  A State of Georgia Certificate of Live Birth and letter that show the applicant is identified as the father of a male child born on 10 February 1999 and that he acknowledged service of the petition filed in the child support matter.

10.  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.

11.  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.

12.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

13.  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 his under other than honorable conditions discharge should be upgraded to an honorable discharge or a general, under honorable conditions discharge because he had an outstanding record of service without any adverse actions up until the time personal issues overwhelmed him and caused him to go AWOL.

2.  The applicant's contentions were carefully considered.  It is noted that the applicant's honorable service from 3 August 1994 through 16 April 1998 is documented in his military records and on his DD Form 214.  The applicant's record of service prior to the offense for which he requested discharge in lieu of trial by court-martial is noteworthy; however, it is insufficient as the sole basis for upgrading his discharge.

3.  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 and administratively correct.  All requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.  The offense that led to the discharge outweighs his overall record.  Therefore, considering all the facts of the case, the characterization of service directed was appropriate.

4.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or other benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

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)                                         AR20090007793



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ABCMR Record of Proceedings (cont)                                         AR20090007793



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