BOARD DATE:	  10 February 2011

		DOCKET NUMBER:  AR20100019486 


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 changed to an uncharacterized character of service.

2.  The applicant states that he was still in an entry level status because he had not yet finished his advanced individual training (AIT) and he had no other issues beside being absent without leave (AWOL).

3.  The applicant provides a page from Army Regulation 635-200 that explains when an uncharacterized character of service is issued.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 5 May 1983 and enlisted in the Regular Army on 15 June 2004 for a period of 6 years and training as an AH-64 Attack Helicopter Repairman.  He completed his basic training and was transferred to Fort Eustis, Virginia to undergo his AIT.

2.  On 17 November 2004 he went AWOL and remained absent in desertion until he surrendered to military authorities in Sacramento, California on 24 January 2005.  He was transferred to Fort Sill, Oklahoma where charges were preferred against him for the AWOL offense.

3.  On 4 February 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 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 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 he understood he could receive a discharge under other than honorable conditions and he might be deprived of all benefits as a result of such a discharge.  He further elected not to submit a statement or explanation in his own behalf.

4.  The immediate commander indicated that the applicant had become disillusioned with the military and wanted out.  He recommended that the applicant’s request be approved.

5.  On 28 March 2005, the appropriate authority approved his request and directed that he be discharged under other than honorable conditions.

6.  On 6 May 2005 he was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 8 months and 14 days of total active service and had 68 days of lost time due to being AWOL.  He had not completed his AIT.

7.  The applicant applied to the Army Discharge Review Board (ADRB) in March 2009 for an upgrade of his discharge.  He contended at that time that he had returned home to take care of his extremely ill grandmother because his chain of command would not accommodate his desire to return home.  He was granted a personal appearance before the ADRB traveling panel in Dallas, Texas on 
22 February 2010.  After hearing the applicant’s testimony and reviewing the facts and circumstances of the case the ADRB determined that there were no mitigating factors to warrant an upgrade of his discharge.  The ADRB denied his request.

8.  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 charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions is normally considered appropriate.  Paragraph 10-8c provides that when characterization of service under other than honorable conditions is not warranted for a Soldier in entry-level status, service will be uncharacterized.  The separation authority makes the determination as to the proper characterization of service at the time the request for discharge is approved.

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 court-martial was administratively correct and in conformance with applicable regulations.  

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

3.  In any event, after being afforded the opportunity to assert 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.  The applicant’s contentions have been noted; however, they are not sufficiently mitigating to warrant the relief he seeks.  He was AWOL for more than 60 days and the separation authority determined that his misconduct warranted a discharge under other than honorable conditions.  His service simply does not warrant an uncharacterized character of service. 

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)                                         AR20100019486



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ABCMR Record of Proceedings (cont)                                         AR20100019486



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