BOARD DATE:	    27 October 2011

		DOCKET NUMBER:  AR20110009438


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, an upgrade of his under other than honorable conditions discharge.

2.  The applicant states:

* he was a great Soldier, with a great career ahead of him
* he requested leave after his mother had a stroke  
* his commander denied his request due to mission requirements, so when his unit returned to the rear, he went absent without leave (AWOL)
* he tried to come back, knowing he would lose rank and get into trouble
* his commander told him it would not be a good idea to turn himself in, so he waited a month and surrendered to military authorities at Fort Bragg, NC 
* the authorities at Fort Bragg told him to go to Fort Knox, which he did with the intention of staying in the Army
* at Fort Knox, he requested to remain in the Army, but after 12 hours, he was released – so he left without signing his discharge documents
* he is a good man and a good father who only wants a second chance to serve
* he owes it to the Nation, as well as to his family, to show that this country is great, and if he is willing to serve again, maybe his son will one day also



3.  The applicant 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 enlisted in the Regular Army on 26 March 1991.  He completed training and was awarded military occupational specialty 11M (Fighting Vehicle Infantryman).  

3.  The applicant's discharge packet is not available for review; however, his record contains a properly-constituted DD Form 214.  This form shows he was discharged on 6 June 1995, in the rank/grade of private/E-1, under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in lieu of trial by court-martial, and issued an under other than honorable conditions discharge.  His DD Form 214 confirms he completed          4 years and 8 days of net active service during this period of enlistment, and he had 64 days of lost time.  

4.  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.

5.  Army Regulation 635-200, 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.

6.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his under other than honorable conditions discharge was carefully considered; however, there is insufficient evidence to support his request.

2.  The applicant’s record is void of the facts and circumstances that led to his discharge.  However, his record contains a properly-constituted DD Form 214 that shows he was discharged on 6 June 1995, under the provisions of chapter 10 of Army Regulation 635-200, in lieu of trial by court-martial. 

3.  The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200 required the applicant to have voluntarily, willingly, and in writing, request 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 has provided no information that would indicate the contrary.  Further, it is presumed that the applicant’s discharge accurately reflects his overall record of service.  Therefore, he is not entitled to an upgrade of his 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)                                         AR20100014558



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ABCMR Record of Proceedings (cont)                                         AR20110009438



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