BOARD DATE:	  3 March 2011

		DOCKET NUMBER:  AR20100020152 


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, in effect, upgrade of his uncharacterized discharge to a general or an honorable discharge.

2.  He states the separation authority for his discharge is Army Regulation
635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  He was young and stupid at the time.  He had a lot of family problems going on plus he had a pregnant girlfriend which made it even worse.  He tried to talk to counselors and he tried to go through the chain of command to get some time off so he could try and settle some of the problems he was having at the time.  He just kept getting the same answer, so he took matters into his own hands and left to take care of the problems.  He was gone longer than he should have been, but he did come back of his own free will.  He informed his chain of command he would take any punishment that they had for him.  He figured they would place him on restriction, reduce him in rank, and assess a fine; not kick him out.  This grave decision has not only cost him benefits, but it has and will cost him careers in the things he wants to do to serve his country.  He is trying to apply for a Federal job, but feels this may cost him that job.

3.  He 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’s military records show he enlisted in the Mississippi Army National Guard (MSARNG) on 27 March 1992.  He completed basic combat training.  He was granted an exception to policy/conditional release prior to completing AIT to join the Regular Army.  He was discharged from the MSARNG on 6 June 1993.

3.  He enlisted in the Regular Army on 7 June 1993 in pay grade E-3 for 3 years. On the date of his enlistment in the Regular Army, the applicant was 19 years and 6 months of age.

4.  In June 1993, he was reassigned for completion of AIT.  On 5 November 1993, he departed training in an absent without leave (AWOL) status.  He was subsequently dropped from the rolls (DFR) of his unit on 5 December 1993.  He surrendered to military authorities at Fort Rucker, AL on 18 February 1994.

5.  A DD Form 458 (Charge Sheet), dated 25 February 1994, shows he was charged with one specification of AWOL from 5 November 1993 to 18 February 1994.

6.  On 25 February 1994, after consulting with counsel, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial court-martial.  In doing so, he acknowledged that he had not been coerced with respect to his request for discharge.  He also acknowledged he understood he could be discharged under conditions which were other than honorable and furnished an Other Than Honorable Discharge Certificate, he could be deprived of many or all Army benefits as a result of the issuance of such a discharge, and that he could be 

ineligible for many or all benefits administered by the Department of Veterans Affairs.  He waived his rights and elected not to submit a statement in his own behalf.  He further acknowledged he knowingly, willingly, and voluntarily was AWOL.

7.  On 1 April 1994, the appropriate separation authority approved the applicant’s request and directed the issuance of an entry level separation characterization and reduction to pay grade E-1.

8.  On 29 April 1994, he was discharged under the provisions of Army Regulation 635-200, chapter 10, with an uncharacterized discharge.  He completed
7 months and 10 days of net active service this period with 105 days of time lost from 5 November 1983 through 17 February 1994.

9.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation specified a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt.  An under other than honorable conditions discharge was normally considered appropriate.  The characterization for a Soldier in an entry level status would be uncharacterized.  For Regular Army Soldiers, entry level status was the first 180 days (approximately 6 months) of continuous active service.

10.  Army Regulation 635-200, paragraph 3-9, stated a separation will be described as entry-level with service uncharacterized if processing is initiated while a Solider is in entry-level status except when characterization under other than honorable conditions is authorized under the reason for separation and is warranted by the circumstances of the case.  

11.  Army Regulation 635-200, paragraph 3-7a, stated an honorable discharge was separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be inappropriate.

12.  Army Regulation 635-200, paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under 

honorable conditions could only be issued only when the reason for the Soldier’s separation specifically allowed such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant departed AWOL on 5 November 1993 and he returned to military control on 18 February 1994.  Upon his return from AWOL, he voluntarily requested discharge for the good of the service - in lieu of trial by court-martial.  In doing so, he waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully charged.  He also acknowledged he could be discharged under other than honorable conditions.

2.  The applicant's contention that his youth and family problems impacted his ability to serve successfully is without merit.  The applicant was 19 years and
6 months of age when he enlisted in the RA.  He was 19 years and 11 months of age when he went AWOL.  There is no evidence he was any less mature than other Soldiers of the same or of a younger age who served successfully and completed their term of service.  There is also no evidence he was denied assistance from his chain of command for any family problems he may have been having at the time.

3.  In accordance with pertinent regulations, an entry level separation with service uncharacterized is authorized except when characterization under other than honorable conditions is authorized under the reasons for separation and is warranted by the circumstances of the case.  In this case, an under other than honorable conditions discharge would normally have been authorized; however, it appears the separation authority determined that the circumstances of his cases warranted an uncharacterized discharge.  

4.  He has provided no evidence to show that his discharge was unjust.  His military records contain no evidence which would entitle him to a change to his discharge status.  As a result, there is no basis for granting his request for a change in his uncharacterized discharge status to either a general or an honorable discharge.

5.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  

6.  He desires to have his uncharacterized entry-level status changed so he can apply for a Federal job; however, the Board does not grant relief solely for the purpose of qualifying an individual for federal employment.

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)                                         AR20100020152



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ABCMR Record of Proceedings (cont)                                         AR20100020152



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