IN THE CASE OF:	  

		BOARD DATE:	  2 December 2010

		DOCKET NUMBER:  AR20100014645 


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 that his discharge under other than honorable conditions be upgraded to a fully honorable discharge.

2.  The applicant states that his discharge should be upgraded because he was injured in training and was never qualified to serve.  He further states that he was scheduled for surgery but never received it and he was injured when he deployed to Kuwait.  He goes on to state that he was further injured during Operation Enduring Freedom and was initially sent to Germany for treatment and then to Fort Stewart, Georgia; however, due to the overcrowded situation he was told to go home.  He continues by stating that he attempted to get medical treatment in Mississippi. 

3.  The applicant provides numerous medical treatment documents, a copy of a letter to his congressional representative, a copy of a statement from his father, a copy of a statement from a friend, copies of two articles related to treatment of Guard and Reserve Soldiers at Army mobilization sites, and copies of his separation documents. 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Mississippi Army National Guard (MSARNG) on 11 January 2000.  He successfully completed his training as a single channel radio operator and was advanced to the pay grade of E-4 on 6 April 2001.

2.  On 2 January 2003, he was ordered to active duty in support of Operation Enduring/Iraqi Freedom and deployed to Kuwait from 5 February 2003 to 24 April 2003.  

3.  On 5 August 2003, the applicant was reported as being absent without leave (AWOL) from the Mobilization Holding Battalion at Fort Stewart, Georgia.  In February 2004, the commander notified the applicant’s parents of his status and advised them to convince the applicant to return to military control.  He remained absent in desertion until he was returned to military control on 11 September 2004 and charges were preferred against him for being AWOL from 5 August 2003 to 10 September 2004. 

4.  On 6 October 2004, after consulting with his defense counsel, the applicant submitted a request for discharge for the good of the service, under the provisions of Army Regulation 635-200, chapter 10, 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.

5.  He further elected to submit a statement or explanation in his own behalf whereas he asserted that he wanted to leave the service as soon as possible and that he regretted the circumstances that led to his situation; however, he had enjoyed his time in the National Guard and was proud of his service.  He went on to state that he understood the stigma he would face in civilian life with a discharge under other than honorable conditions but was prepared to accept the tradeoff in order to streamline the process. 

6.  On 7 October 2004, the separation authority approved the applicant's request for discharge under the provisions of chapter 10, Army Regulation 635-200, directed he receive an Under Other Than Honorable Conditions (UOTHC) discharge, and that he be reduced to the lowest enlisted grade.  On 14 October 2004, the applicant was discharged accordingly.  

7.  The DD Form 214 issued to the applicant upon his separation confirms he was separated under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court-martial.  It also shows that at the time, he had completed 
8 months of creditable active military service during the period covered by the 
DD Form 214, and a total of 3 years, 7 months, and 21 days of military service.  Item 29 (Dates of Time Lost During This Period) confirms he accrued 1 year, 
1 month, and 6 days of time lost from 5 August 2003 through 10 September 2004.  The applicant authenticated this document with his signature in Item 21 (Signature of Member Being Separated) on the date of his separation.

8.  In 2006, the applicant applied to this Board requesting that his period of lost time be expunged from his records because he had incorrectly been reported as being AWOL when he could prove that he was at the post hospital.  He did not submit any evidence to substantiate his claim and the Board denied his request on 16 November 2006.

9.  On 13 December 2006, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge contending that his discharge was inequitable because it was based on one isolated incident and an upgrade would allow him to seek medical attention that he needed.  The ADRB found his discharge to be both proper and equitable under the circumstances and voted to deny his request on 16 January 2008. 

10.  The medical documents submitted by the applicant reflect that the applicant was treated for right knee and right thigh pain; however, they are incomplete as far as the extent of his injuries and do not indicate that he was referred to the Physical Disability Evaluation System (PDES) prior to his going AWOL.

11.  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.

12.  Army Regulation 635-200, paragraph 3-7a, states 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.

13.  Army Regulation 635-200, paragraph 3-7b, states 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.  

DISCUSSION AND CONCLUSIONS:

1.  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 courtmartial, 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.  While it cannot be determined with any degree of certainty based on the available records the extent of the applicant’s injuries or whether it impaired his ability to perform his duties, once he went AWOL, any medical processing would have ceased and would have shifted to resolving his misconduct.  Accordingly, when he was returned to military control, he was properly charged for his misconduct.  However, rather than asserting 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 on his records.  In doing so he admitted guilt to the charges against him.  

4.  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)                                         AR20100014645





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ABCMR Record of Proceedings (cont)                                         AR20100014645



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