IN THE CASE OF:	  

		BOARD DATE:	    3 February 2011

		DOCKET NUMBER:  AR20100019138 


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 discharge under other than honorable conditions to an honorable discharge.

2.  He states that during basic combat and advanced individual training (AIT) he learned how to adapt and overcome difficult situations.  His first duty station was Korea and proved to be quite an experience for him at 19 years of age.  During his tour in Korea, he suffered from depression and anxiety.  He contends it took every bit of his common knowledge to balance his career.

3.  He states he served 2 years at Fort Hood, TX, which became his last duty station.  With the war in Iraq, his company's expectations became more demanding.  His military life as well as his personal life became overwhelming.  His grandfather passed away and his father was suffering with lung cancer.  Because of these reasons, he left his duty station without permission.

4.  He was absent without leave (AWOL) for over 80 days and realized his mistakes.  He decided to return to Fort Hood, TX, and was ordered to Fort Sill, OK, for separation under the provisions of chapter 10, Army Regulation 635-200, (Personnel Separations).  He apologizes to the U.S. military for his inability to adapt during that period of his life.  He contends he was young and immature at the time.



5.  He provided:

* a letter from Broward Partnership for the Homeless, Inc., dated 28 May 2010
* a letter from a church official, dated 12 June 2010

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.  His DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) shows he was born on 13 July 1973 and enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) for 8 years on 8 July 1992.  He was released from the DEP and enlisted in the Regular Army for 4 years on 29 July 1992 at the age of 19 years and 6 days.  After completion of advanced individual training, he was awarded military occupational specialty 12C (Bridge Crewman).

3.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows in:

	a.  item 5 (Oversea Service) that he served in Korea from 30 December 1992 through 28 December 1993;

	b.  item 9 (Awards, Decorations and Campaigns) that he was awarded the Army Service Ribbon, National Defense Service Medal, Overseas Service Ribbon, Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), and Sharpshooter Marksmanship Qualification Badge with Hand Grenade Bar;

	c.  item 18 (Appointments and Reductions) that he was appointed to the rank/
grade of specialist/E-4 on 25 October 1994 and was reduced to the rank/grade of private (PVT)/E-1 on 1  August 1995;

	d.  item 21 (Time Lost) that he was AWOL from 28 June 1995 to 11 July 1995 and from 2 August 1995 to 29 October 1995; and
	e.  item 35 (Record of Assignments) that he was assigned to the 74th Engineer Company, Fort Hood, TX, on 25 October 1994; he was AWOL on two separate occasions; he was dropped from the rolls on 2 August 1995; he returned to military control on 30 October 1995; and he was reassigned to Battery A, Personnel Service Battalion, Personnel Confinement Facility, Fort Sill, OK, on 30 October 1995.

4.  His record contains a DD Form 458 (Charge Sheet) that shows charges were preferred against him on 1 November 1995 for being AWOL on 2 August 1995 and remaining so until 30 October 1995.

5.  On 2 November 1995, he consulted with counsel and requested discharge in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court-martial.  He indicated in his request he understood that he might be discharged under conditions other than honorable and furnished an under other than honorable conditions discharge; that he might be ineligible for many or all benefits administered by the Department of Veterans Affairs; that he would be deprived of many or all Army benefits; and that he might be ineligible for many or all benefits as a veteran under both Federal and State laws.

6.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He elected not to submit a statement on his own behalf and declined his right to a physical evaluation prior to his separation.

7.  On 26 December 1995, the separation authority approved his request for discharge and directed that he be discharged under other than honorable conditions.

8.  Accordingly, he was discharged under other than honorable conditions on 31 January 1996 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He served 2 years, 10 months, and 20 days of active service with 102 days of lost time due to AWOL.

9.  His record shows he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.

10.  On 24 March 2000 after carefully examining his record of service, the ADRB determined he was properly and equitably discharged.  Accordingly, his request for upgrade was denied.

11.  He provided a letter from the Broward Partnership for the Homeless, Inc.  This letter states he was admitted to the facility on 15 December 2009 and was currently undergoing mental health treatment from a community agency.  He has tried to find employment and if he does, he loses the job due to his inability to get along with his supervisors or for not performing up to employer expectations.  The applicant also reported having panic attacks and had difficulty sleeping.  The letter stated he was discharged in 1996 for being AWOL and for testing positive for drug use.  He has been sober and has not used drugs for years which should give credibility to his inappropriate behavior of the past.

12.  He provided a letter from a church official who supports his request for an upgrade of his discharge.

13.  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.

14.  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.  

15.  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.  His request to upgrade his discharge under other than honorable conditions to an honorable discharge was carefully considered.

2.  His current contribution to society and the major life changes he has made are noted.  However, the evidence of record shows court-martial charges were preferred against him for being AWOL for 102 days.

3.  Despite his contention that he was immature at the time, the evidence of record shows he was nearly 22 years of age at the time of his offenses and there is no indication he was any less mature than other Soldiers of the same age who successfully completed military service.

4.  The evidence shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  In connection with such a discharge, he 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, he admitted guilt to the stipulated offenses under the Uniform Code of Military Justice (UCMJ).

5.  He was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  His record shows he admitted to the periods of AWOL in question, he chose not to make any statements on his behalf, and he declined his right to a physical separation examination.

6.  All requirements of law and regulation were met and his rights 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.

7.  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 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)                                         AR20100019138



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ABCMR Record of Proceedings (cont)                                         AR20100019138



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