IN THE CASE OF:	  

		BOARD DATE:	  3 February 2011

		DOCKET NUMBER:  AR20100020010 


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 discharge under other than honorable conditions.

2.  The applicant states that under his current mental state, he believes there has to be an evaluation.

3.  The applicant did not provide any additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army for a period of 3 years on 30 October 2001 and held military occupational specialty 21B (Combat Engineer).  The highest rank/grade he attained during his military service was specialist/E-4.  His records show he was awarded the National Defense Service Medal and the Army Service Ribbon.

2.  On 19 November 2003, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty.  

3.  On 16 December 2003, he departed his Fort Hood, TX, unit in an absent without leave (AWOL) status.  He returned to military control on 5 January 2004.

4.  On 26 January 2004, court-martial charges were preferred against him for two specifications of failing to go at the time prescribed to his appointed place of duty and one specification of wrongfully using cocaine.

5.  On 28 January 2004, he again departed his unit in an AWOL status.  He returned to military control on 5 February 2004.  He was placed in pretrial confinement on the same day.

6.  His record is void of his voluntary request for discharge request for the good of the service in lieu of trial by court-martial in accordance with chapter 10, Army Regulation 635-200 (Personnel Separations).  However, it appears that subsequent to the court-martial charges being preferred, he would have consulted with legal counsel and would have been advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions.  He also would have been advised of the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.

7.  In his request for discharge, he would have acknowledged he understood that by requesting a discharge, he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a discharge under other than honorable conditions.  He would have further acknowledged he understood that if the 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.  His request would have stated, "Moreover, I hereby state that under no circumstances do I desire further rehabilitation, for I have no desire to perform further military service."

8.  On 6 February 2004, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed the issuance of an under other than honorable conditions discharge and the applicant's reduction to the lowest enlisted grade.  On 18 February 2004, the applicant was accordingly discharged.

9.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged for the good of the service in lieu of trial by court-martial with an under other than honorable conditions discharge.  He completed 2 years, 2 months, and 23 days of creditable active military service with 24 days of lost time.

10.  On 12 November 2009, the Army Discharge Review Board denied the applicant's petition for an upgrade of his discharge.

11.  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.

	a.  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.

	b.  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 applicant's record is void of his request for voluntary discharge under the provisions of chapter 10 of Army Regulation 635-200.  However, his records contain a charge sheet, an approval of separation memorandum directing his discharge with an under other than honorable conditions discharge, and a properly-constituted DD Form 214 that shows he was discharged on 18 February 2004 under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by court-martial.

2.  The issuance of his discharge under the provisions of chapter 10, Army Regulation 635-200, required that the applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant provided no information that would indicate the contrary.  Further, it is presumed that the applicant's discharge accurately reflects his overall record of service during this period of service.

3.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable discharge.

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)                                         AR20100020010



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ABCMR Record of Proceedings (cont)                                         AR20100020010



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