IN THE CASE OF:	  

		BOARD DATE:	  7 December 2010

		DOCKET NUMBER:  AR20100016010 


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 the DD Forms 214 (Certificate of Release or Discharge from Active Duty), dated 7 October 2005 and 17 February 2006, be expunged from his Official Military Personnel File.  

2.  The applicant states, in effect, he is currently a police officer in North Carolina.  However, he was arrested as being a fugitive from justice from the Army.  He goes on to state that after being discharged from the Army in December 1992 he was in between jobs and needed a full-time job so he applied for a job with the sheriff’s department.  He did not realize he would be hired so quickly; therefore, he went to the military entrance processing station (MEPS) to enlist.  When he found out he was going to be hired by the sheriff’s department he went back to the MEPS and informed them he wanted to discontinue his enlistment processing and he was told his processing for Fort Hood, Texas would stop and he would not have to go.  However, it appears the process did not stop and he was reported as a deserter. 

3.  The applicant provides:

* A one-page handwritten letter explaining his application
* Copies of two DD Forms 214

CONSIDERATION OF EVIDENCE:

1.  The applicant initially enlisted in the Regular Army in Raleigh, North Carolina on 4 January 1989 and served as an armor crewman until he was honorably released from active duty (REFRAD) on 14 December 1992 due to the expiration term of service (ETS).  He had served 3 years, 11 months, and 11 days of total active service and he was transferred to the United States Army Reserve (USAR) Control Group (Reinforcement). 

2.  On 17 February 1994, he enlisted in the North Carolina Army National Guard (NCARNG) and served until he was honorably discharged on 28 February 1996 for the purpose of enlisting in the Army. 

3.  On 29 February 1996, he enlisted in the Regular Army for a period of 3 years and while not explained in the available record, he again enlisted in the NCARNG on 20 December 1996.  On 7 August 1998, he was reported as being absent without leave (AWOL) from the 21st Replacement Company (Regular Army) at Fort Hood, Texas.  On 31 March 1999, he was discharged from the NCARNG with an uncharacterized discharge due to a defective enlistment agreement. 

4.  On 7 November 2000, he again enlisted in the NCARNG and served until he was discharged under honorable conditions on 31 October 2003 due to unsatisfactory participation.

5.  Meanwhile, he was returned to military control on 27 August 2001 and on     30 August 2001 he again went AWOL and remained absent in a desertion status until 20 September 2004 when he was apprehended by civil authorities at Wake Forrest, North Carolina and transferred to Fort Knox, Kentucky.  On 
23 September 2004, he again went AWOL and remained absent until he was apprehended by civil authorities in Wendell, North Carolina on 12 September 2005.

6.  On 15 September 2005, charges were preferred against the applicant at Fort Knox for being AWOL from:

* 7 August 1998 – 27 August 2001
* 30 August 2001 – 20 September 2004
* 23 September 2004 – 12 September 2005

7.  On 15 September 2005, after consulting with 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.  He also elected not to submit a statement in his own behalf.

8.  The appropriate authority approved his request for discharge on 21 September 2005 and directed that he be discharged under other than honorable conditions.

9.  Accordingly, on 7 October 2005, while on excess leave, he was discharged under other than honorable conditions from the Regular Army at Fort Knox under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by        court-martial.

10.  On 26 October 2005, the applicant again enlisted in the Regular Army in Raleigh, North Carolina for a period of 4 years and 17 weeks and training as a petroleum supply specialist.  He indicated that his prior service was in the Army from 4 January 1989 to 28 February 1996.  He was transferred to Fort Lee, Virginia to undergo his training.

11.  On 31 January 2006, the applicant’s commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, chapter 7 for fraudulent enlistment due to his failure to reveal that he had been discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10.

12.  On 9 February 2006, after consulting with counsel, he waived all of his rights and elected not to submit a statement in his own behalf.

13.  The appropriate commander approved the recommendation for discharge on 13 February 2006 and directed that his discharge be uncharacterized.

14.  On 17 February 2006, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 7 for fraudulent entry and his service was uncharacterized.  

15.  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.

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.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

2.  The applicant’s contentions have been noted; however, he has provided no evidence to show he did not enlist in the Regular Army or that he did not go AWOL during the period for which he was charged.  Additionally, the fact that he offered no mitigating circumstances when he was apprehended or when he requested discharge also serve to support what the Army did at the time.  

3.  Additionally, the fact that the applicant enlisted in the Regular Army 19 days after he was discharged under other than honorable conditions and concealed that fact also serves to further reinforce that the applicant’s discharges were valid and that his service and the DD Forms 214 related to that service should remain a matter of record.

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)                                         AR20100016010



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ABCMR Record of Proceedings (cont)                                         AR20100016010



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