IN THE CASE OF:	  

		BOARD DATE:	  4 November 2010

		DOCKET NUMBER:  AR20100013080 


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, in effect, upgrade of his under other than honorable conditions discharge.

2.  The applicant states he went absent without leave (AWOL) from his advanced individual training (AIT) unit when he was released for Christmas exodus.  When he turned himself in to military authorities, he was told he would be court-martialed for his unauthorized absence or he could request a discharge in lieu of court-martial.  He states he signed the paperwork and he was released.  Today he is more mature, attends college, owns a home, and he has worked consistently for 7 years with no disciplinary history.  He would like to upgrade his status so he can rejoin the military in the Iowa National Guard.

3.  The applicant did not provide any documentary evidence in support of his application.  

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 23 September 1999 for a 
6-year period.  He completed his initial entry training and he was attending advanced individual training when he was reported AWOL at Fort Eustis, VA on 2 January 2000.  He was apprehended by civilian authorities on 19 March 2000 and he was returned to military control at Fort Knox, KY.

3.  On 23 March 2000, court-martial charges were preferred against the applicant for being AWOL from 2 January 2000 to on or about 20 March 2000.

4.  On the same day, he voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial, indicating that he was making the request of his own free will and that prior to completing his request, he consulted with legal counsel who fully advised him of the nature of his rights under the Uniform Code of Military justice (UCMJ) and the offense with which he was charged.  In his request, the applicant acknowledged that he may be discharged under other than honorable conditions, that he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable discharge.

5.  Records show the applicant was placed on excess leave on 24 March 2000.

6.  On 22 March 2001, the applicant's commander recommended the applicant be discharged for the good of the service - in lieu of trial by court-martial with an under other than honorable conditions discharge.

7.  On 26 April 1991, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial and directed issuance of an under other than honorable conditions discharge.

8.  The applicant was discharged accordingly on 8 June 2001.  The DD Form 214 issued at the time confirms he completed 1 year, 5 months, and 28 days of net active service and that his service was characterized as under other than honorable conditions.  His DD Form 214 shows he accrued time lost due to AWOL from 2 January 2000 to 19 March 2000.

9.  On 1 September 2006, the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his under other than honorable conditions discharge to an honorable discharge.  On 15 October 2007, after careful review of his application, the ADRB determined he was properly and equitably discharged.  Therefore, the ADRB unanimously voted to deny his request.

10.  References:

	a.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ.  The maximum punishment for 30 or more days of AWOL includes a punitive discharge (dishonorable discharge or bad conduct discharge), confinement for 12 to 18 months, and forfeiture of all pay and allowances.

	b.  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.

	c.  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 contention that his under other than honorable conditions discharge should be upgraded was carefully considered but found to be without merit.

2.  He was charged under the UCMJ for being AWOL in excess of 30 days.   This act is a violation of the UCMJ with a maximum punishment of confinement for 12 to 18 months, a punitive discharge, and forfeiture of all pay and allowances.   Therefore, his under other than honorable conditions discharge was warranted because of the reason for separation and circumstance of his case.
3.  He met with counsel and was informed of his rights to include the option to request a discharge or go to trial.  He voluntarily elected a discharge under the provisions of Army Regulation 635-200, chapter 10.  This type discharge is a voluntary request for discharge in lieu of trial by court-martial.

4.  The type of discharge directed and the reason for separation were appropriate considering all the known facts of the case.  The record contains no indication of procedural or other errors that would tend to jeopardize his rights.  Furthermore, the quality of the applicant's service did not meet the standards of acceptable conduct and performance expected of Army personnel.

5.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

6.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20100013080



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ABCMR Record of Proceedings (cont)                                         AR20100013080



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