IN THE CASE OF:	  

		BOARD DATE:	  10 February 2011

		DOCKET NUMBER:  AR20100018855 


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 upgrade of his general discharge to an honorable discharge.

2.  The applicant states he has never been in trouble with the law, he has a full time job, and he has a family.  He adds he has lived with this [his general discharge] for 15 years and he believes his military records before he acted like an idiot [being absent without leave (AWOL)] should speak for itself.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 6 July 1994.  He completed training and he was awarded military occupational specialty 11B (infantryman).  The highest rank/grade he attained during his service was private (PV2)/E-2.

3.  A DD Form 458 (Charge Sheet) contained in his records shows that on
25 April 1995 charges were preferred against him for being AWOL from
21-23 March 1995, 28 March to 11 April 1995, and 18-22 April 1995.

4.  On the same day, having consulted with military counsel, he voluntarily requested a 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.  He acknowledged that he was not subjected to coercion with respect to his request for discharge and that he had been advised of the implications that were attached to his request.  He further acknowledged that by submitting his request for discharge, he was admitting guilt to the charge against him or a lesser included offense therein contained which also authorizes the imposition of a bad conduct or dishonorable discharge.

5.  He acknowledged he understood that if his discharge request was approved, he might be discharged under conditions other than honorable and furnished an Under Other than Honorable Conditions Discharge Certificate.  He acknowledged 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 ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he might be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he understood he may expect to encounter substantial prejudice in civilian life by reason of an under other than honorable conditions discharge.

6.  He submitted a statement in his own behalf stating he was airborne and air assault qualified.  He added that he entered the Army at the age of 17 to get money for college and he had recently turned 18 years of age.  He further stated he had not given the Army a problem prior to going AWOL.  He added that he went AWOL due to personal problems with his ex-fiancé and knew he was wrong for doing so.  He asked to be given a general discharge so he would at least be able to get a normal job and maybe attend college.  His defense counsel asked his commanders to support this request.

7.  On 2 May 1995, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10 and directed the issuance of a general discharge.

8.  On 9 May 1995, he was discharged accordingly.  The DD Form 214 he was issued at that time shows he had completed a 9 months and 13 days of total active service.  Block 29 (Dates of Time Lost During this Period) shows the entry "Under 10 USC 972: 19950321-19950322; 19950328-19950410; 19950418-19950422."

9.  There is no indication the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

10.  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.

11.  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 records show he was charged with being AWOL on three occasions.  He voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10.  In doing so, he admitted guilt to the charge or of a lesser included offense which authorized the imposition of a bad conduct or dishonorable discharge.  This serious misconduct normally warranted an under other than honorable conditions discharge.  However, a general discharge was recommended due to his unique circumstances (completion of airborne and air assault training, and his age [18 years of age at the time of his discharge] and immaturity).  After considering defense counsel's recommendation for a general discharge the applicant's immediate and intermediate chain of command concurred with the recommendation for a general discharge.  Subsequently, the separation authority directed issuance of a general discharge.

2.  His military record and his statement regarding his post-service conduct were taken into consideration but, given the seriousness of the offenses, his service is appropriately characterized.

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)                                         AR20100018855



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ABCMR Record of Proceedings (cont)                                         AR20100018855



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