IN THE CASE OF:	  

		BOARD DATE:	  9 September 2010

		DOCKET NUMBER:  AR20100009834 


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, through his Member of Congress, an upgrade of his under other than honorable conditions discharge to a general discharge.  

2.  The applicant states he received an under other than honorable conditions discharge because he was in an absent without leave (AWOL) status.  He does not make any excuses for going AWOL except that he was upset after returning from Korea for not getting advanced and because he could not get the child support issue straightened out.  He apologizes for this inappropriate behavior and he would like a second chance.  He is a single parent with limited job opportunities.  An upgrade would allow him to recover from the mistake he made. 

3.  The applicant provides the following documents:

* A character reference letter
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Army Discharge Review Board Case Report and Directive
* A letter to his Member of Congress
* A resume
* A certificate of completion (Nurse Aide)

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's records show he enlisted in the Regular Army for a period of 3 years on 19 October 2000 and held military occupational specialty 92G (Food Service Specialist).  The highest rank/grade he attained during his military service was private/E-2.

3.  His records show he completed 1 year of foreign service and he was awarded the National Defense Service Medal, Army Service Ribbon, and Overseas Service Ribbon.

4.  His records reveal an extensive history of negative counseling by several members of his chain of command for various infractions including disobeying orders, multiple instances of failing to be at the time prescribed at his appointed place of duty, and failure to report.

5.  On 16 January 2003, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for failure to report. 

6.  On 19 May 2003, he participated in a unit urinalysis and his urine sample tested positive for marijuana.

7.  On 19 May 2003, he left his Fort Hood, TX, unit in an AWOL status and on 18 June 2003, he was dropped from the Army rolls.  He ultimately surrendered to his unit on 30 October 2003.  

8.  On 24 November 2003, court-martial charges were preferred against the applicant for five specifications of failing to go at the time prescribed to his appointed place of duty, one specification of being AWOL, one specification of disobeying an order, and one specification of wrongfully using marijuana. 

9.  On 25 November 2003, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions.  He was advised of the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, the applicant requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10, Army Regulation 635-200 (Personnel Separations).

10.  In his request for discharge, he acknowledged he understood that by requesting a discharge, he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a discharge under other than honorable conditions.  He further acknowledged he understood that if the discharge request was 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.  His request also stated, "Moreover, I hereby state that under no circumstances do I desire further rehabilitation, for I have no desire to perform further military service."

11.  On 4 December 2003, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed the issuance of an under other than honorable conditions discharge.  On 17 December 2003, the applicant was accordingly discharged.  The DD Form 214 he was issued shows he was discharged for the good of the service in lieu of a court-martial with an under other than honorable conditions discharge.  He had completed 2 years, 7 months, and 28 days of creditable active military service and he had 164 days of lost time during this period of enlistment.  

12.  On 17 December 2004, the Army Discharge Review Board denied the applicant's petition for an upgrade of his discharge.

13.  He submitted a copy of his resume, a certificate showing completion of the nurse aide training program, and a letter to his Member of Congress.  He also submitted a character reference letter, dated 23 April 2004, from an Army sergeant first class who states the applicant had a lapse of judgment but has since learned from his mistake and is ready for a second chance. 

14.  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.

15.  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 applicant’s records show he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharge actions processed under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

2.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  The applicant received the appropriate characterization of his service.  The applicant's AWOL circumstances warranted an under other than honorable conditions discharge.

3.  His overall record is noted.  However, his is a record marred by a history of indiscipline and disregard to military authority as evidenced by his extensive history of negative counseling, drug abuse, and AWOL.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or honarable discharge.









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)                                         AR20100009834



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)