IN THE CASE OF:	  

		BOARD DATE:	  18 May 2010

		DOCKET NUMBER:  AR20090018013 


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 general under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD).

2.  The applicant states his case was mishandled by his chain of command.  He claims he was suffering from a post-traumatic stress disorder (PTSD) and had substance abuse problems.  He claims had his chain of command acted correctly in his case, he probably would still be serving.  He claims he has done well since his separation.  He has overcome his drug addiction and is working very hard to control his PTSD.  He states a lot would be lifted from him if his discharge were upgraded to an HD so reputable employers would consider him for employment.  He states he has three small children and a wife.  Job opportunities are slim and he is unable to get good employment because of his military background.  He claims he served his country honorably and suffered for it, but he made mistakes which he takes full responsibility for.  He believes an upgrade of his discharge would be a great end to another chapter in his life.

3.  The applicant provides no documentary evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he enlisted in the Regular Army and entered active duty on 28 October 2004.  He was trained in and awarded military occupational specialty 45K (Armament Repairer).

2.  The applicant's record shows he served in Iraq from 27 November 2005 through 12 September 2006 and that he earned the following awards during his active duty tenure:

* Army Commendation Medal
* Army Achievement Medal
* National Defense Service Medal
* Global War on Terrorism Service Medal
* Iraq Campaign Medal 
* Army Service Ribbon
* Combat Action Badge

3.  The applicant's record is void of medical documents indicating he suffered from a disabling PTSD or any other physical condition that would have supported his separation processing through medical channels while serving on active duty.

4.  On 20 July 2007, court-martial charges were preferred against the applicant for his two specifications of violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being absent without leave (AWOL) from on or about 23 February through on or about 6 March 2007 and from on or about 9 March through on or about 20 July 2007, for his two specifications of violating Article 112a of the UCMJ by wrongfully using cocaine between on or about 5 February 2007 and on or about 8 February 2007, and for wrongfully using marijuana between on or about 9 January 2007 and on or about 8 February 2007.

5.  On 30 August 2007, the applicant consulted with legal counsel and was advised of the basis for the pending trial by court-martial, the maximum permissible punishment authorized, the significance of a sentence to a punitive discharge, the possible effects of an under other than honorable conditions (UOTHC) discharge, and of the procedures and rights available to him.  Subsequent to receiving legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations).

6.  In his request for discharge, the applicant acknowledged that by submitting his discharge request he understood the elements of the offense charged and that he was guilty of the charge against him or of a lesser included offense therein which also authorized the imposition of a UOTHC discharge.  He further indicated that under no circumstances did he desire further rehabilitation, for he had no desire to perform further service.  He further acknowledged that he understood if his request was approved, he could be issued a UOTHC discharge and that he had been advised of and understood the possible effects of such a discharge.

7.  The applicant also acknowledged in his discharge request his understanding he would be deprived of many or all benefits as a veteran under both Federal and State laws and that he could expect to encounter substantial prejudice in civilian life because of a UOTHC discharge.

8.  On 7 September 2007, the separation authority approved the applicant's request for discharge and directed the applicant receive a UOTHC discharge.  On 18 September 2007, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows he completed a total of 2 years, 6 months, and 9 days of active service and had accrued 132 days of lost time due to AWOL.

9.  On 16 April 2008, the Army Discharge Review Board (ADRB) voted to upgrade the applicant's discharge from UOTHC to a GD based on his overall record of service.  The ADRB determined the authority and reason for the applicant's discharge were proper and equitable and voted not to change the reason for discharge.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides 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 HD or GD is authorized, a UOTHC discharge is normally considered appropriate.

11.  The same regulation 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded to an HD because it was too harsh and his chain of command did not treat him properly has been carefully considered.  However, the evidence is not sufficient to support this claim.

2.  While there is no issue taken with the decision of the ADRB to upgrade the applicant's original UOTHC discharge to a GD based on his overall record of service, the evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge and after consulting with defense counsel he voluntarily requested discharge from the Army in lieu of trial by court-martial.

3.  The record further shows in his request for discharge, the applicant admitted guilt to the charge(s) against him or of a lesser included offense that also authorized the imposition of a UOTHC discharge.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  There is no evidence of record or independent evidence submitted by the applicant that would support his assertion his chain of command acted improperly in preferring court-martial charges against him for his violations of the UCMJ or in the processing of his discharge, which he voluntarily requested to avoid a punitive discharge.  There is also no evidence supporting a conclusion he was suffering from a disabling PTSD or any other condition that would have supported his separation processing through medical channels at the time of his discharge.

5.  The applicant's AWOL and wrongful use of illegal drugs clearly diminished his overall record of service below that meriting a fully honorable discharge.  Therefore, there is an insufficient evidentiary basis to support granting the requested relief.

6.  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)                                         AR20090018013



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ABCMR Record of Proceedings (cont)                                         AR20090018013



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