IN THE CASE OF:	  

		BOARD DATE:	  7 October 2010

		DOCKET NUMBER:  AR20100011035 


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 under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states his discharge was based on him being absent without leave (AWOL), which he is not proud of and now regrets.

	a.  He states that while he was awaiting discharge in lieu of trial by court-martial, he was innocently involved in an incident and was suspected of assault.

	b.  He states that after he was discharged he sent proof from Federal Bureau of Investigation (FBI) records that he was cleared of the charge; he also has a letter from Headquarters, Department of the Army (HQDA), to this effect.

	c.  He states he has matured, made positive changes in his life, and now has a family.  He also states that he has a brother in the military and an uncle who served 23 years.  He adds he has great respect for the military, he would do anything to be part of the U.S. Armed Forces, and he apologizes for his actions during his military service.

	d.  He also states he is requesting an upgrade of his discharge because he wants to go to school and complete a career.

3.  The applicant provides no additional documentary evidence 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 had prior honorable enlisted service in the Army National Guard (ARNG) of the United States and the Puerto Rico ARNG from 9 February 1989 to 8 February 1997.

3.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant entered active duty for training on 18 September 1989.  He was honorably released from training on 19 December 1989 and returned to the control of his ARNG unit.

	a.  At the time he had completed 3 months and 2 days of net active service.

	b.  Item 11 (Primary Specialty Number, Title and Years and Months in Specialty) shows he was awarded military occupational specialty 11B (Infantryman).

4.  The applicant enlisted in the Regular Army for a period of 3 years on 16 July 1999.

5.  A DA Form 4187 (Personnel Action) shows the applicant's duty status was changed from present for duty to AWOL effective 15 November 1999.

6.  A DA Form 4187 shows the applicant's duty status was changed from AWOL to dropped from the rolls effective 15 December 1999.

7.  On 15 December 1999, charges were preferred against the applicant under Article 85, Uniform Code of Military Justice, for being AWOL from his unit effective 15 November 1999.

8.  A Report of Return of Absentee shows the applicant was apprehended by the Massachusetts State Police on 22 January 2002 at Worcester, MA, and returned to military control to the 101st Airborne Division (Air Assault), Fort Campbell, KY.

9.  The applicant's military personnel records do not contain a copy of his request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial.

10.  Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, Fort Campbell, KY, memorandum, dated 19 June 2002, subject:  Discharge in Lieu of Trial by Court-Martial – Private First Class [Applicant], shows that Major General R____ A. C____, Commanding General, 101st Airborne Division (Air Assault), advised the applicant that he had referred the charges addressed in his request to a special court-martial empowered to adjudge a bad conduct discharge.  After further consideration of his case and the matters submitted in defense, the commander affirmed the decision to approve the applicant's request for discharge in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  The commander directed that the applicant be reduced to the lowest enlisted grade and discharged with a characterization of service of under other than honorable conditions.  He also directed that, upon execution of the discharge, the charge and specification were dismissed without prejudice to the government.  Accordingly, the applicant was discharged on 27 June 2002 and issued a DD Form 214.

11.  The applicant's DD Form 214 shows he was discharged on 27 June 2002 in accordance with Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial with his service characterized as under other than honorable conditions.  At the time he had completed 8 months and 21 days of net active service.

	a.  Item 29 (Dates of Time Lost During This Period) shows he had time lost from 15 November 1999 through 23 January 2002.

	b.  Item 21 (Signature of Member Being Separated) shows the applicant placed his signature on the document.

12.  On 26 July 2004, the applicant submitted a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) to the Army Discharge Review Board (ADRB) requesting recharacterization of his discharge under other than honorable conditions.  On 9 March 2005 after careful consideration of the applicant's military records and all other available evidence, the ADRB determined the applicant's discharge was proper and equitable.  Accordingly, the applicant's request was denied and he was notified of the ADRB's decision.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 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 honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

	b.  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.

	c.  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.

14.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge under other than honorable conditions should be upgraded because he was innocently involved in an incident and was suspected of assault, FBI records and an HQDA letter show he was cleared of the charge, and he regrets his actions.  He also contends his discharge should be upgraded so he may attend school and complete a career.

2.  The applicant's contentions were carefully considered.  The sincerity of the applicant's comments are not in question.  However, the applicant failed to provide any evidence (i.e., FBI record or HQDA letter) that shows he was cleared of the charge in question and/or that it was to be removed from government records.  Further, it does not appear the applicant was discharged due to a alleged assault.  It appears he was discharged due to a 2-month period of AWOL.  Thus, he provides insufficient evidence to support the requested relief.

3.  The evidence of record shows the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial with a characterization of service of under other than honorable conditions.

4.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial credible evidence to rebut the presumption.  The applicant fails to provide such evidence.  As a result, the applicant's discharge is presumed proper and equitable.

5.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of enhancing employment opportunities or making the applicant eligible for veterans' benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for health care and other benefits should be addressed to the Department of Veterans Affairs.

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)                                         AR20100011035



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ABCMR Record of Proceedings (cont)                                         AR20100011035



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