IN THE CASE OF:
BOARD DATE: 21 September 2011
DOCKET NUMBER: AR20110005484
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 upgraded to an honorable discharge.
2. The applicant states that he was sick with bursitis in his right elbow. His drill sergeant failed to help him seek further treatment. He went home to seek medical treatment of his own free will. His drill sergeant told him not to return to advanced individual training.
3. The applicant provides copies of:
* TRICARE Claim Detail
* Excelsior College Status Report
* Associate in Arts Degree Certificate from Boricua College
* High School Equivalency Diploma
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 27 October 2005. While still undergoing initial entry training, he was absent without leave (AWOL) from his unit from on or about 17 February through on or about 30 July 2006.
2. On 12 October 2006, charges were preferred against him under the Uniform Code of Military Justice (UCMJ) for violation of Article 86 for being absent without leave (AWOL) from on or about 17 February through on or about 30 July 2006.
3. The applicant consulted with counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of being discharged under other than honorable conditions, and of the procedures and rights available to him.
4. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.
5. In his request for discharge, the applicant indicated he understood if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.
6. On 25 October 2006, the separation authority approved the applicant's request for discharge and directed issuance of an under other than honorable conditions discharge. On 8 November 2006, the applicant was discharged accordingly. He completed 4 months and 26 days of creditable active duty service.
7. On 22 April 2008, the Army Discharge Review Board denied his request for an upgrade of his discharge.
8. The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ. A punitive discharge is authorized for offenses under Article 86 for periods of AWOL in excess of 30 days.
9. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.
a. 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. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.
b. 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.
c. 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends his discharge should be upgraded. He states his drill sergeant did not help him seek further medical treatment of the bursitis in his right elbow and after he went home to get medical treatment his drill sergeant told him not to return for training. There is no available evidence to support these claims.
2. The applicant's voluntary request for discharge for the good of the service to avoid trial by court-martial under the provisions of Army Regulation 635-200, chapter 10,was administratively correct and in conformance with applicable regulations.
3. 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 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) AR20110005484
4
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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