BOARD DATE:	  29 December 2009

		DOCKET NUMBER:  AR20090013358 


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, in effect, that he experienced severe family/financial issues and he acted in an irrational manner.  He contends that his command was aware of his family situation and only suggested that he attend an Army Community Service class when he was homeless, that he could not get housing on base due to a lack of space, and that he could not afford a place due to his credit situation.  He indicates that he resided in the in-processing barracks for two months (homeless) and his family went back home.  He claims that he is guilty of being absent without leave (AWOL) but he does not feel he should have received a discharge under other than honorable conditions after serving 
10 years of accredited service with no blemishes.  He goes on to state that he would like a second chance to correct his past and redeem himself and he would like to reenter the U.S. Army.        

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States); five character reference letters; and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 enlisted in the Regular Army on 3 October 1991 and trained as a radio communications security repairer and communications security equipment repairer.  He attained the rank of sergeant on 1 March 1995 and reenlisted on 25 September 1996 and on 13 January 2000.  

3.  On 12 July 2000, the applicant went AWOL and returned to military control on 16 August 2000.  He went AWOL again on 22 August 2000 and returned to military control on 5 September 2000.  On 13 September 2000, charges were preferred against the applicant for the AWOL period (12 July 2000 to 17 August 2000).

4.  On 13 September 2000, the applicant consulted with counsel and requested discharge in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He indicated in his request that he understood he might be discharged under conditions other than honorable and furnished an other than honorable conditions discharge, that he might be ineligible for many or all benefits administered by the Department of Veterans Affairs, that he would be deprived of many or all Army benefits, and that he might be ineligible for many or all benefits as a veteran under both Federal and State law.  He acknowledged that he might expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He elected not to make a statement in his own behalf.

5.  On 14 September 2000, the applicant was placed on excess leave.




6.  On 20 November 2001, the separation authority approved the applicant's voluntary request for discharge and directed that he be furnished an under other than honorable conditions discharge.

7.  Accordingly, the applicant was discharged under other than honorable conditions on 19 December 2001 under the provisions of Army Regulation     635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He had served 10 years and 26 days of creditable active service with 51 days of lost time due to AWOL.

8.  In support of his claim, the applicant provided five character reference letters from three co-workers, his wife, and a supervisor.  The co-workers and supervisor attest that the applicant gets along extremely well with others, that he has excellent supervisor qualities, is reputable, has good character, is a role model, and is conscientious and dedicated.  His wife states that they have been married for 13 years and the applicant has been the sole provider for her and their three children.  She contends that he went AWOL due to financial problems, having no permanent place to live, and having a child diagnosed as developmentally delayed.  She also states that the applicant is currently handling himself extremely well, that he continues to work hard every day at everything he does, and that he is diligent, patient, well organized, and a loving husband and father.

9.  On 13 August 2004, the Army Discharge Review Board (ADRB) denied the applicant's request for a discharge upgrade.  On 27 May 2005, the ADRB denied the applicant's request for an honorable discharge.

10.  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.







11.  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 (emphasis added) or is otherwise so meritorious that any other characterization would be clearly inappropriate.

12.  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 character reference letters submitted on behalf of the applicant fail to show that his discharge was unjust and should be upgraded.

2.  The applicant’s contentions were carefully considered.  However, his record of service during his last enlistment included 51 days of lost time.  He was a sergeant.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge or a general discharge.

3.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.









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)                                         AR20090013358





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ABCMR Record of Proceedings (cont)                                         AR20090013358



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