IN THE CASE OF:	  

		BOARD DATE:	  12 January 2011

		DOCKET NUMBER:  AR20110014359


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 honorable.

2.  As a related issue, the applicant requests, in effect, correction of item 18 (Remarks) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show:

* he completed his first full term of service
* the dates of his honorable service

3.  The applicant states:

* he entered military service in February 2004 and was discharged in March 2008
* he served in Iraq for 14 months from January 2006 to February 2007
* while in Iraq he injured his right knee
* upon returning from Iraq he was diagnosed with post-traumatic stress disorder (PTSD)
* while in Iraq he suffered extreme family health, financial, and marital issues
* he transferred to Fort Sam Houston, TX, and began military occupational specialty (MOS) training in a medical MOS
* while at Fort Sam Houston, his spouse began complaining to his chain of command that he wasn't providing financial support
* despite his proof to the contrary that showed he was providing sufficient support, his chain of command began threatening him with disciplinary action if his wife didn't stop calling
* after months of harassment from his wife and chain of command, he was absent without leave (AWOL)
* after his return from AWOL and subsequent discharge, he began to lead a fully functional life of work
* while he was discharged under other than honorable conditions, his service was honorable
* his DD Form 214 is inaccurate and doesn't reflect his true service
* prior to his transfer to Fort Sam Houston, he was being processed for a medical discharge
* he doesn't blame the Army for his misguided decision to be AWOL, but he feels his DD Form 214 should reflect his honorable service
* he is currently 25 years old and seeking better opportunities in life
* with his current discharge, he is unable to further his education or seek treatment for his PTSD

4.  The applicant provides a personal statement and his DD Form 214.

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 for a 3-year term on 19 February 2004.  He completed one-station unit training and was awarded MOS 13B (Cannon Crewmember).

3.  On 7 April 2005, he extended his enlistment for a period of 5 months in order to meet the service remaining requirements for an overseas tour with dependents.  His expiration of term of service (ETS) date then became 18 July 2007.

4.  On an unknown date in 2007 prior to his ETS, he either reenlisted or extended his previous enlistment.  His reenlistment or extension document is not contained in his official military personnel file.

5.  On 16 November 2007, he was reported by his unit as AWOL.  On 29 November 2007, he returned to military control.

6.  On 29 November 2007, his immediate commander prepared a DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) wherein he advised the applicant of his intent to impose nonjudicial punishment (NJP) against the applicant for being AWOL from 16 November 2007 until his return to military control on 29 November 2007.

7.  On 30 November 2007, he was again reported by his unit as AWOL.

8.  On 1 December 2007, he was dropped from the rolls of the Army and court-martial charges were preferred against him for two periods of AWOL from 16 November 2007 through 29 November 2007 and from 30 November 2007 to the present date.

9.  On 8 January 2008, he surrendered to military authorities at Fort Sill, OK.

10.  On 10 January 2008, court-martial charges were preferred against him for being AWOL during the period 30 November 2007 to 8 January 2008.

11.  On 11 January 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 discharge under other than honorable conditions, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights 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 (Active Duty Enlisted Administrative Separations).

12.  In his request for discharge, he indicated 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 lesser-included offenses that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions.  He further acknowledged he understood if the 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.  He elected not to submit statements in his own behalf.

13.  On 7 March 2008, the separation authority approved his voluntary request for discharge in lieu of trial by court-martial in accordance with Army Regulation 635-200, chapter 10, and directed that he receive a discharge under other than honorable conditions.

14.  On 24 March 2008, 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 completed 3 years, 11 months, and 27 days of net active service during this period of active duty and he had 39 days of lost time due to AWOL.  Item 18 contains the entry "MEMBER HAS NOT COMPLETED FIRST FULL TERM OF SERVICE."

15.  On 1 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.

16.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes the standardized policy for preparing and distributing the DD Form 214.  It states the DD Form 214 provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.

17.  Army Regulation 635-5, paragraph 2-4h(18), states that item 18 of the DD Form 214 documents the remarks that are pertinent to the proper accounting of a separating Soldier's period of service.  It states to enter "IMMEDIATE REENLISTMENTS THIS PERIOD (specify dates)" in item 18 for enlisted Soldiers with more than one enlistment period during the time covered by the DD Form 214.  However, for Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except honorable, enter "CONTINUOUS HONORABLE ACTIVE SERVICE FROM (first day of service for which DD Form 214 was not issued) UNTIL (date before commencement of current enlistment)."  Then, enter the specific periods of reenlistments as prescribed above.

18.  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.

19.  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.

20.  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 enlisted in the Regular Army on 19 February 2004 and served without a break in service until 24 March 2008, the date of his discharge.

2.  Item 18 of his DD Form 214 contains the entry "MEMBER HAS NOT COMPLETED FIRST FULL TERM OF SERVICE" which is incorrect.  The evidence of record reveals he completed his first full term of service on 18 February 2007.  Therefore, his DD Form 214 should be corrected to show he completed his first full term of service.

3.  Additionally, item 18 should be corrected to show he had a period of continuous honorable active service from 19 February 2004 to 18 February 2007.

4.  With regard to his request for an upgrade of his discharge, 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 Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.

5.  The available evidence shows he requested discharge in lieu of trial by court-martial – voluntarily, willingly, and in writing.  He was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  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.

6.  The challenges he described are noted; however, these challenges do not diminish the seriousness of the offenses he committed.

7.  Based on his extended periods of AWOL, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ____X____  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending item 18 of his DD Form 214 to:

* delete the entry "MEMBER HAS NOT COMPLETED FIRST FULL TERM OF SERVICE" 
* add the entries "MEMBER HAS COMPLETED FIRST FULL TERM OF SERVICE" and "PERIOD OF HONORABLE SERVICE FROM 20040219 TO 20070218"


2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading the character of his discharge.



      ____________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)                                         AR20110014359



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