IN THE CASE OF:	  

		BOARD DATE:	  9 November 2010

		DOCKET NUMBER:  AR20100013765 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to upgrade his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states it is hard for him to find employment with his current discharge.  He is attending college in order to better himself and to become a prosperous and productive citizen.  He believes upgrading his discharge would be beneficial.

3.  He contends he made many mistakes in his life, but none define who he is.  He should not have left the Army because he served and protected his country well.  He is currently facing hardship due to his father's untimely death.  He has been left with the responsibility to take care of his family.

4.  The applicant did not provide any documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the U.S. Army Reserve Delayed Enlistment Program (DEP) for a period of 8 years on 23 June 1999.  He was released from DEP status and enlisted in the Regular Army for 3 years on 22 June 2000.  After completion of basic combat and advanced individual training he was awarded military occupational specialty 92Y (Unit Supply Specialist).

2.  On 30 July 2002, a DD Form 458 (Charge Sheet) was prepared by the applicant's commander which showed he was charged with one specification of violating the Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana between 19 March 2002 and 19 April 2002.

3.  His records indicate a second DD Form 458 was prepared on 21 August 2002 in which he was charged with another specification of violating the UCMJ by absenting himself without leave (AWOL) from 30 May 2002 to 14 August 2002.

4.  On 22 August 2002, the applicant voluntarily submitted a request for discharge in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Enlisted Personnel), chapter 10.  In his request the applicant stated he understood he could request discharge in lieu of trial by court-martial because charges had been filed against him under the UCMJ which could authorize the imposition of a bad conduct or dishonorable discharge.

5.  In his request, the applicant stated that he was making his request of his own free will and had not been subjected to coercion whatsoever by any person.  The applicant stated he had been advised of the implications that were attached to his request and that by submitting his request, he acknowledged that he was guilty of the charges against him or of a lesser or included offense that allowed the imposition of a bad conduct or a dishonorable discharge.  Moreover, he stated that he did not desire further rehabilitation or to continue service in the military.

6.  Prior to completing his request for discharge, the applicant consulted with his appointed attorney.  His counsel fully advised him of the nature of his rights under the UCMJ, the elements of the offense with which he was charged, any lesser included offenses thereto, the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty, the possible defenses which appear to be available at the time, and the maximum permissible punishment if found guilty.  Although he was furnished legal advice, he admitted that the decision to submit a request for discharge in lieu of trial by court-martial was his own.

7.  The applicant stated he understood that if his request were accepted, he could be discharged under conditions other than honorable.  He was advised and understood the effects of an under other than honorable discharge (including, but not limited to, reduction to the lowest enlisted grade by operation of law) and that as a result of the issuance of such a discharge he would be deprived of many or 


all Army benefits that he might be eligible for, that he might be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also understood that he could expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.

8.  The applicant was advised that he could submit a statement in his own behalf which would accompany his request for discharge.  The applicant declined to submit a statement in his own behalf.  He also waived his right to a separation physical.

9.  On 15 November 2002, the Staff Judge Advocate reviewed the applicant's request for discharge in lieu of trial by court-martial and noted no legal objections in further processing his request.

10.  On 20 November 2002, the acting brigade commander approved the applicant's request for discharge in lieu of trial by court martial.  He directed the applicant's service be characterized as under other than honorable conditions and that he be processed for immediate separation and be reduced to the rank and pay grade of private/E-1.

11.  Accordingly, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial with an under other than honorable conditions discharge in the rank and pay grade of private/
E-1 on 11 December 2002.

12.  On 1 November 2007, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.

13.  On 29 September 2008 after carefully examining the applicant's record of service, the ADRB determined he was properly and equitably discharged.  Accordingly, his request for upgrade was denied.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 at any time after the charges have been preferred.  A discharge under other than honorable conditions is normally considered 


appropriate, but the separation authority may direct a general discharge or an honorable discharge if such is merited by the Soldier's overall record and if the Soldier's record is so meritorious that any other characterization clearly would be improper.

15.  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.  The applicant's request to upgrade his under other than honorable conditions discharge to an honorable discharge was carefully considered; however, it is not supported by the evidence of record.

2.  The applicant has not submitted sufficient evidence or a convincing argument to support his request.  The evidence shows the applicant was charged with two violations under the UCMJ.  He voluntarily submitted a request for discharge for the good of the service in lieu of trial by court-martial.  His chain of command supported his request and he was discharged accordingly.
 
3.  The evidence shows the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. Procedurally, the applicant was required to consult with defense counsel and to voluntarily and in writing request separation from the Army in lieu of trial by court-martial.  In doing so, the applicant admitted guilt to the stipulated offenses under the UCMJ.

4.  The evidence shows that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The characterization of service for this type of discharge is normally under other than honorable conditions and the evidence shows the applicant was aware of that prior to requesting discharge.  The reason for discharge and the characterization of service were both proper and equitable.

5.  In view of the foregoing, there is no basis to grant the 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)                                         AR20100013765



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ABCMR Record of Proceedings (cont)                                         AR20100013765



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