IN THE CASE OF:	  

		BOARD DATE:	    20 July 2010

		DOCKET NUMBER:  AR20100006935 


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 general discharge to an honorable discharge and change of his narrative reason for separation to a more favorable reason.

2.  The applicant states in a two-page letter, in effect, that he had his discharge upgraded by the Army Discharge Review Board (ADRB) in 2006 and he now desires to have his discharge upgraded to an honorable discharge with a more favorable narrative reason for separation.  He goes on to state that since his discharge upgrade he has been receiving the medical care he badly needed for his post-traumatic stress disorder (PTSD) and his alcohol and drug issues, and he desires to receive his GI Bill benefits as well.  He further states that he has an opportunity for a good job in the Middle East with a private contracting firm that will allow him to make decent tax-free money for a period of 2 years; however, he needs an honorable discharge with no negative narrative reason in order to qualify for the job.  He also states that he was a good Soldier until he returned from Iraq; however, he did not get the help he needed.

3.  The applicant provides:

* a two-page letter explaining his application
* two DA Forms 638 (Recommendation for Award)
* his Expert Infantryman Badge orders, certificate, and a letter to his parents
* orders awarding him the Combat Infantryman Badge


* orders awarding him the Air Assault Badge
* copies of three photographs

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 21 May 2002 for a period of 3 years, training as an infantryman, and a cash enlistment bonus.  He completed his one-station unit training (OSUT) at Fort Benning, GA and he was transferred to Fort Campbell, KY for his first and only permanent duty assignment.

2.  He served in Iraq from 1 March 2003 to 28 February 2004 and he was advanced to the pay grade of E-4 on 21 June 2004.

3.  On 4 August 2005, charges were preferred against the applicant for being absent without leave (AWOL) from 6 April to 14 April 2005 and from 20 April to 27 June 2005, for two specifications of destruction of government property (broke a window with his fist and stabbed a mattress and wall locker with a knife), and for wrongfully communicating threats of harm to other Soldiers and their families.

4.  On 5 August 2005, after consulting with defense counsel, the applicant submitted a request for discharge under the provisions of Army Regulation
635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), chapter 10, for the good of the service - in lieu of trial by court-martial.  In his request he indicated that he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted that he was guilty of the charges against him or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged that he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge.  It does not appear that he elected to submit a statement or explanation in his own behalf.

5.  The appropriate authority (a major general) approved his request on 17 August 2005 and directed that he be discharged under other than honorable conditions.

6.  Accordingly, he was discharged under other than honorable conditions on 19 August 2005 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 3 years, 2 months, and 29 days of active service during his current enlistment and he had 77 days of time lost due to being AWOL.

7.  A review of the available records fails to show that the applicant ever sought the assistance of his chain of command or that he ever surfaced his alleged problems to his chain of command.  

8.  On 29 November 2005, he applied to the ADRB for an upgrade of his discharge.  On 11 October 2006, the ADRB determined that given the circumstances in his case and considering his combat service, his discharge was inequitable and, by a majority, voted to upgrade his discharge to a general discharge.  The board also considered his narrative reason for discharge and determined it was both equitable and proper and unanimously voted not to change it.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against them or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and they must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive.  A discharge under other than honorable conditions is normally considered appropriate.

10.  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.

DISCUSSION AND CONCLUSIONS:

1.  Notwithstanding the actions taken by the ADRB to upgrade his under other than honorable conditions discharge to a general discharge, 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.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction in his records.  In doing so he admitted guilt to the charges against him.

4.  The applicant’s contentions are not sufficiently mitigating to warrant relief under the circumstances.  While he may have been experiencing problems at the time, there is no evidence to show that he made any attempt to seek assistance from his chain of command to resolve his problems or at least offer an explanation to explain his absence and misconduct.  The ABCMR does not upgrade discharges solely for the purpose of improving employment opportunities or making an applicant eligible for benefits from other agencies.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20100006935



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)