BOARD DATE:	  30 September 2010

		DOCKET NUMBER:  AR20100020888 


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 under other than honorable conditions discharge to a general discharge.  He also requests a personal hearing.

2.  The applicant states his discharge took place over 15 years ago and it was based on an isolated incident with no other adverse action.  He has since moved on with his life and he would like to move past this incident.  This discharge is adversely affecting his ability to gain employment.  It is an injustice to continue to characterize his service as under other than honorable conditions after so many years. 

3.  The applicant provides the following documents: 

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* A self-authored personal biography
* Two letters of recommendation

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant's discharge be upgraded.

2.  Counsel states the applicant's records should be reviewed based on his military personnel file and his submitted supporting documents. 

3.  Counsel did not provide any additional documentary evidence. 

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 records show he enlisted in the California Army National Guard (CAARNG) on 7 April 1993 for a period of 8 years, with concurrent order to initial active duty for training (IADT).  He was reassigned to Fort Sill, OK for completion of basic training with a follow-on assignment to Fort Leonard Wood, MO for advanced individual training (AIT).  The highest rank/grade he attained during his military service was private (PV1)/E-1. 

3.  His records also show he was awarded the Expert Marksmanship Qualification Badge with Grenade Bar and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

4.  On 21 August 1993, he departed his training unit in an absent without leave (AWOL) status and on 20 September 1993, he was dropped from the rolls of his unit.  He surrendered to military authorities at Fort Irwin, CA, on 8 February 1994 and was assigned to Fort Sill, OK, pending disposition of his AWOL offense.

5.  On 16 February 1994, court-martial charges were preferred against the applicant for one specification of being AWOL from on or about 21 August 1993 to on or about 8 February 1994.

6.  On 17 February 1994, he consulted with legal counsel and he was 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, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of 

the procedures and rights that were available to him.  Following consultation with legal counsel and of his own free will without being subjected to any coercion whatsoever by any person, he requested 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.

7.  In his request for discharge on 17 February 1994, he indicated he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person.  He also indicated he understood that by requesting 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 honorable conditions.  He further acknowledged he understood that if the discharge request was 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 (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  Additionally, he also stated "under no circumstances do I desire further rehabilitation for I have no desire to perform further military service."

8.  On 10 March 1994, his immediate commander recommended approval of the applicant's request with the issuance of an under other than honorable conditions discharge.

9.  On 21 March 1994, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial and directed the applicant's separation with an under other than honorable conditions discharge.  The applicant was accordingly discharged on 28 April 1994.  The DD Form 214 he was issued shows he was discharged in lieu of trial by court-martial with a character of service of under other than honorable conditions.  This form further confirms the applicant had completed a total of 7 months and 4 days of net active service with 172 days of time lost.

10.  There is no indication he petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations. 

11.  He submitted the following documents:

	a.  A self-authored biography in which he recalls his reasons for joining the Army and recalls an incident with his girlfriend and his daughter.  He 

acknowledges he was wrong in going AWOL and states that after being convinced by family members to return to military control, he turned himself in and was given a choice to stay in the Army or leave.  He decided to take the discharge.  He adds that since his discharge, he improved his life and became a master mason.  He also attended Lean Six Sigma and he was seeking welding certification.  He is currently unemployed and would like his discharge upgraded so he may improve his ability in obtaining gainful employment.

   b.  A letter of recommendation, dated 22 August 2009, from a U.S. Marine Corps veteran who comments on the applicant's drive and determination, as well as his hard work and maturity.

	c.  A letter of recommendation, dated 24 August 2009, from an individual who describes the applicant as a patriotic and religiously-oriented individual with strong work ethics.

12.  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.

13.  Army Regulation 635-200, 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.

14.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-9 contains guidance on the burden of proof.  It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, that is what the Army did was correct.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The ABCMR will decide cases on the 

evidence of record.  The ABCMR may, in its discretion, hold a hearing.  Paragraph 2-11 states applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be upgraded.  He also requests a personal hearing.

2.  The applicant’s request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

3.  His record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily, willingly, and in writing requested discharge from the Army in lieu of a trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

4.  The applicant's post-service accomplishments are noted.  However, the Army had never had a policy wherein a member's discharge is upgraded due to the passage of time.  Additionally, the difficulties he encountered with his girlfriend at the time are noted.  However, the applicant had many legitimate avenues through which he could have received assistance or relief for his alleged difficulties had he chose to use them.

5.  The ABCMR does not correct records for the purpose of establishing entitlements to other programs or benefits.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to a general discharge.

6.  In view of the foregoing, there is no basis for granting the applicant's request.


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)                                         AR20100020888



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ABCMR Record of Proceedings (cont)                                         AR20100020888



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