BOARD DATE:	  23 November 2010

		DOCKET NUMBER:  AR20100014741 


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:

* he has been a law-abiding citizen since his discharge
* he has obtained a bachelor of arts degree and he is pursuing a graduate degree
* he acknowledges he made a bad choice and he served his country poorly
* prior to the Army, he was an enlisted member in the Navy and he received an honorable discharge

3.  The applicant provides a college transcript, a police records check, and a DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 10 June 1999.

CONSIDERATION OF EVIDENCE:

1.  With prior service in the U.S. Navy, the applicant enlisted in the Regular Army on 22 May 2000 for a period of 4 years for training in military occupational specialty 88M (motor transport operator).

2.  Records show that while assigned to Company A, 43rd Adjutant General Battalion (Reception), Fort Leonard Wood, MO, he departed absent without leave (AWOL) on 25 May 2000.  On 24 June 2000, he was reported as a deserter.  The applicant was apprehended by civil authorities in Florida and, on 9 May 2001, he was returned to military control at the Personnel Control Facility (PCF), Fort Knox, KY.

3.  On 14 May 2001, charges were preferred against him for being AWOL from on or about 25 May 2000 to on or about 9 May 2001.  He consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested 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.

4.  In his request for discharge, he indicated he understood that by requesting discharge, he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request were 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.

5.  On 25 January 2002, the separation authority approved the applicant's voluntary request for discharge and directed that he receive an under other than honorable conditions discharge and be reduced to the lowest enlisted grade.  On 4 February 2002, he was discharged accordingly.  The DD Form 214 he was issued confirms he completed a total of 8 months and 24 days of net active service this period with 349 days of time lost.

6.  Item 12d (Total Prior Active Service) of this DD Form 214 for the period ending 4 February 2002 shows 3 years, 11 months, and 13 days.

7.  On 24 December 2007, the applicant petitioned the Army Discharge Review Board for an upgrade of his under other than honorable conditions discharge to a general discharge based on career opportunities and his prior military service in the U.S. Navy.  On 10 November 2008, after a careful review, the Army Discharge Review Board unanimously voted to deny his request.


8.  The applicant provides:

* a college transcript, dated 1 April 2010, indicating he was enrolled in graduate courses at Nova Southeastern University, Fort Lauderdale, FL
* a Miami-Dade Police Department records check, dated 27 April 2010, wherein it states he has no local police record
* a DD Form 214 for the period ending 10 June 1999, showing he was honorably released from active duty in the U.S. Navy, having completed
3 years, 11 months, and 13 days of new active service

9.  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.  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.

10.  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.

11.  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 evidence of record shows the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Furthermore, his discharge accurately reflects his record of service.

2.  Although the applicant honorably served in the U.S. Navy, it does not mitigate his extended AWOL that ultimately led to discharge in lieu of court-martial.  Additionally, he is commended for his accomplishments since his discharge; however, that too is insufficient to warrant an upgrade of his discharge.  Therefore, 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)                                         AR20100014741



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ABCMR Record of Proceedings (cont)                                         AR20100014741



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