BOARD DATE:	  29 November 2011

		DOCKET NUMBER:  AR20110006578 


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 fully honorable discharge.

2.  The applicant states his discharge is unjust due to his physical condition at the time.  However, he made a mistake and he is trying to get help.

3.  The applicant did not provide any evidence.

CONSIDERATION OF EVIDENCE:

1.  Having had prior service, the applicant enlisted in the New Jersey Army National Guard on 12 August 2004.  He held military occupational specialties 92Y (Unit Supply Specialist) and 44C (Finance Specialist).  

2.  On 6 November 2005, he was ordered to active duty  in support of Operation Iraqi Freedom.

3.  On 22 February 2006, he departed his unit of assignment in an absent without leave (AWOL) status and on 23 March 2006, he was dropped from the Army rolls as a deserter.  He was apprehended by civil authorities at East Orange, NJ, and returned to military control at Fort Knox, KY, on 15 September 2008.

4.  On 22 September 2008, court-martial charges were preferred against the applicant for one specification of being AWOL from 22 February 2006 to 15 September 2008.  
5.  On 22 September 2008, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, 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, he requested discharge under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 10, for the good of the service - in lieu of trial by court-martial.

6.  In his request for discharge, he indicated that he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person.  He also indicated that he understood 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 dishonorable discharge.  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, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  

7.  His chain of command recommended approval with the issuance of an under other than honorable conditions discharge.

8.  On 3 November 2008, the separation authority approved the applicant's request for discharge in accordance with Army Regulation 635-200, chapter 10 and directed the issuance of an under other than honorable conditions discharge. On 5 December 2008, he was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed 6 months and 7 days of creditable active service and he had 936 days of lost time.

9.  On 20 April 2010, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

10.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s records show he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharge actions processed under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of 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, the applicant’s discharge accurately reflects his overall record of service.

2.  Based on this record of indiscipline, his 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 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 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)                                         AR20110006578





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ABCMR Record of Proceedings (cont)                                         AR20110006578



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