BOARD DATE:	  24 January 2012

		DOCKET NUMBER:  AR20110013867 


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 upgrade of his discharge to general, under honorable conditions.

2.  He states:

"Since being discharged from the military, I haven't been in trouble with the law or even gotten a single ticket.  I got married and my wife and I had another child, and bought our first house.  I graduated from a Tech school in Heating and Air.  I've been working at Eastman Kodak . . . since [October 2006].  I have a less than honorable, uncharacterized.  I'm requesting it be changed to a [general discharge (GD)].  I applied to [a police academy], I've taken the civil service exam and had an interview.  The test for [a fire department] is sometime in 2012.  I know I did not honor my commitment, trust me I think about it every single day.  I work hard and enjoy spending time with my kids.  I know what integrity and honor [are].  I joined for all the wrong reasons back in 2005.  Now I'm focused on being a cop or fire fighter.  I used to have nothing to lose, now I have everything.  I would like another shot at it.  Serving as a cop I can serve, protect and give back to my community.  I can show integrity and honor.  I would give my life for my wife and kids.  I know I screwed up, but I cannot fail my wife and kids.  I'm asking to please consider changing my discharge to a [GD].  I got asked today by a hiring manager for a [heating ventilation air conditioning (HVAC)] job about my discharge.  I'm tired of that making me look bad.

3.  He provides a:
* U.S. Department of Housing and Urban Development Settlement Statement
* Kodak employee data
* diploma from an HVAC program of study
* Marriage License
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Ohio Army National Guard (ARNG) for a period of 6 years on 25 January 2005.

2.  His record includes DA Forms 4187 (Personnel Action) showing the Commander, Company C, 187th Ordnance Battalion, 4th Training Brigade, Fort Jackson, SC, changed his duty status as follows:

* effective 25 April 2005, from present for duty to absent without leave (AWOL)
* effective 25 May 2005, from AWOL to drop from rolls (DFR)

3.  On 27 July 2005, the Adjutant General's Department, State of Ohio, Columbus, OH, issued Orders 208-015 discharging him from the ARNG effective 25 May 2005 with an uncharacterized discharge.  The orders also assigned him to Company C, 187th Ordnance Battalion, Fort Jackson, SC. 

4.  His record includes a National Guard Bureau Form 22 (Report of Separation and Record of Service) showing he was separated from the Ohio ARNG effective 25 May 2005 by reason of being DFR and his service was uncharacterized.

5.  A DD Form 616 (Report of Return of Absentee) shows he returned to military control on 19 September 2005.

6.  A DA Form 4187 shows his duty status was changed from DFR to attached/present for duty effective 19 September 2005.

7.  The complete facts and circumstances of his discharge are not included in the available records.  He provides a DD Form 214 showing, on 14 October 2005, he was discharged under other than honorable conditions in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 10.  The form shows he had time lost from 25 April to 18 September 2005.

8.  On 16 November 2009, the Army Discharge Review Board informed him his request for a change in the character and/or reason of his discharge was denied.

9.  He provides documents showing he:

* was married on 17 November 2006 
* was hired by Kodak on 19 March 2007
* received an HVAC diploma on 27 March 2008
* purchased a house on 17 October 2008

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  Chapter 10 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.

	b.  Paragraph 3-7b provides that a GD 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 evidence of record does not support the applicant's request for upgrade of his discharge.  

2.  The applicant's record does not include the complete facts and circumstances surrounding his discharge.  It appears he was charged with being AWOL, 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.  The applicant is presumed to have voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that 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.

3.  His voluntary request for discharge in lieu of trial by court-martial would have included his admission of guilt to an offense that authorized the imposition of a bad conduct or dishonorable discharge.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a GD.

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)                                         AR20110013867





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ABCMR Record of Proceedings (cont)                                         AR20110013867



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