IN THE CASE OF:	  

		BOARD DATE:	  13 March 2012

		DOCKET NUMBER:  AR20110017191 


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 that his under other than honorable conditions (UOTHC) discharge be upgraded to a general discharge (GD).

2.  He states he went absent without leave (AWOL) in 1995 due to many circumstances which occurred at the time.  His father went to prison, his girlfriend lied about a miscarriage, and he failed advanced individual training (AIT).  

3.  He contends Sergeant (SGT) H constantly picked on him throughout AIT and called him trailer park trash on more than one occasion.  He made three reports to his drill SGT about the mistreatment, but nothing was ever done.  On one occasion he thought he had been dismissed, so he went to the Post Exchange.  He misunderstood the order, and as a result, he was demoted in grade.

4.  Since the time of his discharge, he has raised a family and graduated from the police academy.  He is a commissioned officer who serves two communities.  He would like to advance in his career, but it would require an upgrade of his UOTHC discharge. 

5.  The applicant provides:

* A DD Form 458 (Charge Sheet)
* Separation orders
* A copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* A Drury University Certificate of Training
* A letter of support

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’s military records are not available for review.  However, he provided sufficient documentation for the Board to conduct a fair and impartial review of this case.

3.  He enlisted in the Regular Army on 1 June 1995.  The facts and circumstances leading to his discharge are not in the available file. 

4.  The DD Form 458 he provided shows he was attending initial entry training at Fort Sill, OK when he was charged with one specification of going AWOL from 
27 August 1995 to 6 February 1996. 

5.  Headquarters, U.S. Army Field Artillery Center and Fort Sill, issued Orders 144-24 on 23 May 1996.  This order reassigned the applicant to the U.S. Army Separation Transition Point with a reporting and discharge date of 6 June 1996.  

6.  Accordingly, on 6 June 1996, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 for the good of the service, in lieu of trial by court-martial, and his service was characterized as UOTHC.  The applicant completed 6 months and 23 days of net active service and had 164 days lost time due to AWOL status.   

7.  He provided a certificate from Drury University which shows he completed the 690-hour Law Enforcement Training Academy on 16 June 2011.  

8.  He provided a letter of support from the Chief of Police, Reeds Spring Police Department who states the applicant became an employee on 3 August 2011.  He continued to show outstanding support of the department and the community by participating in extra community service activities and goes above and beyond the scope of his duties.  The applicant’s contribution to the police department in a hazardous duty role shows the high level of his moral character and his attributes as an officer.  He strongly recommends that the applicant’s current discharge be reviewed and upgraded to reflect his strong character.  

9.  There is no record he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

10.  Army Regulation 635-200, then in effect, set forth the basic authority for the administrative separation of enlisted personnel.  

	a.  Chapter 10 stated that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges have been preferred.  The request must include the Soldier's acknowledgement that the Soldier understood the elements of the offense(s) charged and that the Soldier was guilty of the charge(s) or of a lesser included offense therein contained which also authorized the imposition of a punitive discharge.  A discharge under other than honorable conditions was normally considered appropriate.

	b.  A GD is a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

11.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  His separation packet was not available for review by this Board.  However, he provided a DD Form 458 which shows charges were preferred against him for going AWOL during the period 27 August 1995 to 6 February 1996.  Rather than face court-martial, he opted to submit a request for discharge in lieu of trial by court-martial, for the good of the service.  

2.  In accordance with regulatory guidance, he was required to consult with defense counsel and to voluntarily and in writing request separation from the Army in lieu of trial by court-martial.  In doing so, the applicant would have admitted he was guilty of the offense for which he was charged and acknowledged that he could receive a UOTHC discharge.

3.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulations were met and his rights were fully protected throughout the separation process and that the type of discharge and the reason for separation were appropriate.

4.  His post-service achievements and conduct are noted; however, good post- service conduct alone is not normally sufficient for upgrading a properly issued discharge.

5.  In view of the above, there is an insufficient basis to upgrade his UOTHC discharge 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)                                         AR20110017191





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ABCMR Record of Proceedings (cont)                                         AR20110017191



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