IN THE CASE OF:	

		BOARD DATE:	  17 February 2010

		DOCKET NUMBER:  AR20090009528 


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 his discharge be upgraded to either general or honorable.

2.  The applicant states, in effect, he had family problems and went home on leave from his assignment in Korea.  He married the mother of his 3-year old son, but because of her illness from pneumonia, he stayed beyond his authorized leave and was declared absent without leave (AWOL).  When he returned to Korea, he had difficulty explaining the situation to his commander because of his limited ability with the English language.  His commander sent him to Fort Sill, OK, and he was scheduled to be court-martialed.  There he again had trouble communicating and requested discharge in lieu of trial by court-martial based on their recommendation, which he now deeply regrets.  He would like to serve again and needs a more favorable discharge to do so.

3.  The applicant provides:

	a.  a 12 June 1998 memorandum commending him as honor graduate from his military occupational specialty (MOS) training class;

	b.  an Honor Graduate Military Excellence Award Certificate from the Noncommissioned Officer Association;

	c.  a certificate of achievement for excelling as an honor graduate for one-station unit training (OSUT);

	d.  an OSUT diploma issued on 17 June 1998;

	e.  three letters of support, dated 28 June 2008, 17 July 2008, and 18 July 2008;

	f.  a copy of his 2 June 2008 civilian performance review;

	g.  a copy of his college diploma showing he earned a Bachelor of Science degree in Business Administration on 9 June 2000; and

	h.  a copy of DA Form 2807-1 (Report of Medical History), dated 29 April 2008.

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 is of Hispanic descent.  He enlisted in the Regular Army on 4 March 1998.  He completed MOS training at Fort Sill, OK, where he was an honor graduate in MOS 13B (Cannon Crewmember) training.

3.  The applicant's initial duty assignment was with Battery C, 1st Battalion, 15th Artillery, Camp Casey, Korea.  On 3 February 1999, he was declared AWOL from his unit.  On 1 April 1999, he surrendered to military authorities at Fort Sill.

4.  On 5 April 1999, the applicant was formally charged with AWOL.  On 8 April 1999,  he consulted with counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, in lieu of trial by court-martial.  In so doing, he stated he was guilty of the charge against him which authorized the imposition of a bad conduct or dishonorable discharge and that he did not desire further rehabilitation nor had he any desire for further military service.  He stated that he understood the nature and consequences of the under other than honorable conditions discharge that he might receive.  He declined to submit a statement in his own behalf.  He was placed on excess leave without pay to await his discharge.

5.  On 17 August 1999, the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial was approved.  He was discharged under other than honorable conditions on 20 September 1999.

6.  The applicant petitioned the Army Discharge Review Board (ADRB) on 28 July 2008 seeking a discharge upgrade.  The ADRB, after considering his case on 21 April 2009, denied his request.

7.  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.  A discharge under other than honorable conditions is normally considered appropriate.

8.  Army Regulation 635-200 provides guidance on characterization of service and provides, in pertinent part:

	a.  Paragraph 3-7a states 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.

	b.  Paragraph 3-7b states 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 would like a general or honorable discharge.

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.  There is no indication that he did not understand the proceedings or that he could not adequately explain his situation due to a language barrier.  This is supported by the fact he was an honor graduate from OSUT, indicating that he understood English very well.  In 1999, the U.S. Army was comprised of 11 percent of Hispanic males; adequate Spanish speakers were available at Fort Sill to help the applicant explain his problems.

3.  The applicant's request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.

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 the aforementioned 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)                                         AR20090009528



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ABCMR Record of Proceedings (cont)                                         AR20090009528



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