BOARD DATE:	  20 July 2010

		DOCKET NUMBER:  AR20100000108 


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 an upgrade of his discharge and restoration to pay grade E-4.

2.  The applicant states he was disrespected by two of his unit's leaders which unwillingly led him to quit on his own terms.  He would like to join the Air National Guard.

3.  The applicant provides no documentation in support of his request.

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 17 February 1995, completed training as a cannon crew member, and progressed normally.

3.  He was advanced to specialist/pay grade E-4 on 17 April 1997 and was awarded the Army Good Conduct Medal on 17 February 1998.

4.  The applicant was absent without leave (AWOL) from 21 July 1998 to 14 September 1998.

5.  When charges were preferred for that period of AWOL, he consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Enlisted Administrative Separations), chapter 10.

6.  In his request for discharge, the applicant indicated he understood that by requesting discharge he was admitting guilt to the charge against him or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

7.  The officers in the applicant's chain of command recommended an under other than honorable conditions discharge.

8.  The discharge authority approved the applicant's request, directed the issuance of an under other than honorable conditions discharge, and ordered his reduction to pay grade E-1.

9.  The applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, on 24 February 1999.  He had completed 3 years, 10 months, and 13 days of creditable active service during the period under review with 55 days of AWOL.

10.  On 6 January 2010, the Army Discharge Review Board denied the applicant's request to upgrade his discharge.

11.  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 any AWOL offense of 30 days or more.

12.  Army Regulation 635-200 provides in:

	a.  chapter 10 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;

	b.  paragraph 1-13 that when a Soldier is to be discharged under other than honorable conditions under chapter 10, the separation authority will direct immediate reduction to the lowest enlisted grade;

	c.  paragraph 3-7a that an honorable discharge as 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; and

	d.  paragraph 3-7b 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 states he was disrespected by two of his unit's leaders which unwillingly led him to quit on his own terms.  He would like to join the Air National Guard.

2.  There is no available evidence and the applicant did not provide any evidence relating to the motivation for his AWOL or the rationale for his decision to request the discharge he received.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

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)                                         AR20100000108



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ABCMR Record of Proceedings (cont)                                         AR20100000108



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