BOARD DATE:	  1 November 2011

		DOCKET NUMBER:  AR20110010308


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 discharge, from under other than honorable conditions to under honorable conditions.

2.  The applicant states:

* at the time of his discharge, he was young and dumb
* since his discharge he has grown to become a family man, who has stayed in good standing and out of trouble
* he would like to join the Army National Guard and serve his country
* at the time of his discharge, he was going through some very personal problems with his ex-wife, who ran away with his son
* he handled the situation poorly and he did not use proper judgment
* he is a college graduate and would like to better his life  

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 27 April 2001.  He attended basic training prior to reporting to Fort Bliss, TX for advanced individual training in military occupational specialty 14E (Patriot Missile System Enhanced Operator/Maintainer).  

2.  On 24 August 2001, he was reported by his unit as absent without leave (AWOL).  He remained AWOL until his return to military control on 26 April 2002. 
3.  On 9 May 2002, court-martial charges were preferred against him for one specification of AWOL, from on or about 24 August 2001 to on or about 26 April 2002.  

4.  On 10 May 2002, 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 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, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

5.  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 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 were 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 law.  

6.  On 9 July 2002, the separation authority approved his voluntary request for discharge in lieu of a court-martial in accordance with chapter 10 of Army Regulation 635-200, and directed he receive an under other than honorable conditions discharge.  

7.  On 24 July 2002, he was discharged in lieu of a trial by court-martial with a character of service of under other than honorable conditions.  His DD Form 214 shows he was credited with 6 months and 23 days of net active military service during this period with 242 days of lost time.  

8.  On 24 September 2010, the Army Discharge Review Board (ADRB) reviewed his request for upgrade of his under other than honorable conditions discharge.  After careful consideration the ADRB determined the reason for his discharge and the characterization of his service were both proper and equitable and voted to deny relief.

9.  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.

10.  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 discharge was carefully considered; however, there is insufficient evidence to support his request.

2.  His records show he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 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 trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.  

3.  The applicant contends his discharge should be upgraded because he was "young and dumb" at the time of his service.  He was 22 years of age at the time of his offense; however, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.

4.  In view of the foregoing, there is no basis for relief in this case.

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)                                         AR20100011935



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ABCMR Record of Proceedings (cont)                                         AR20110010308



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