IN THE CASE OF:	  

		BOARD DATE:	    23 February 2012

		DOCKET NUMBER:  AR20110017240 


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 undesirable discharge be upgraded.

2.  The applicant states he is not trying to prove that his discharge was incorrect or make excuses for what he did.  Instead he is trying to get clemency for the immense mistake he made two years ago.  Since then, he has earned a bachelor's degree in business graduating with top honors in only three years in a four year program.  He fears that all he has accomplished and will continue to accomplish will be in vain due to his discharge.  He regrets the decision he made but he did not do it for selfish reasons.  He continues that he gave up a life he always wanted because he was put in an impossible situation.  He is asking the Board with all the humility he possesses to grant him the discharge upgrade, not because it was incorrect but because the Board should give him a chance at life without worrying about an other than honorable discharge.  He also contends that he has been turned down for two jobs in the Federal government because of the character of his discharge.

3.  The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty), a third-party statement, documents pertaining to his academic achievements, and his employment résumé.

CONSIDERATION OF EVIDENCE:

1.  The applicant's enlistment document shows he enlisted in the Regular Army on 4 October 2007 for training in military occupational specialty 92R (Parachute Rigger).
2.  A DA Form 4187 (Personnel Action), dated 25 April 2008, shows the applicant departed absent without leave (AWOL) on 17 January 2008 and remained AWOL until he surrendered to military authorities on 15 April 2008.

3.  On 17 April 2008, court-martial charges were preferred against him for the AWOL offense.

4.  On 18 April 2008, he consulted with legal counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 due to charges being preferred against him under the Uniform Code of Military Justice (UCMJ) which authorized the imposition of a bad conduct or dishonorable discharge.

5.  He acknowledged in his request that he understood the elements of the offenses and that he was guilty of at least one of the charges against him or at least one of the lesser included offenses which also authorized the imposition of a bad conduct or dishonorable discharged.  He also acknowledged that he could be issued an under other than honorable conditions discharge and that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, that he could be deprived of many or all Army benefits, and that he could be ineligible for many or all benefits as a veteran under both Federal and State laws.  He further acknowledged he could expect to encounter substantial prejudice in civilian life by reason of a under other than honorable conditions discharge.  

6.  On 30 June 2008, the separation authority approved his request for discharge and directed his reduction to the lowest enlisted grade and his service characterized as under other than honorable conditions.  On 30 July 2008, he was discharged accordingly.

7.  The Army Discharge Review Board denied his requests for a discharge upgrade on 13 August 2009 and 3 November 2010.

8.  He provides a third-party statement, authored by his spouse, in which she attests that she placed him in an impossible situation by making him choose between the Army and her.  She also states that he departed AWOL only because of her.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel and provides in:

	a.  Chapter 10 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 3-7a 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.

	c.  Paragraph 3-7b, 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 a discharge upgrade has been carefully considered.  

2.  The available evidence shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  The record shows that after consulting with legal counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  In his request, he admitted guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.

3.  The reasons for his AWOL offense and his academic achievements were noted; however, his voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  There is no indication the request was made under coercion or duress.

4.  Based on the offense he was accused of and in view of the fact he voluntarily requested discharge to avoid a court-martial that could have resulted in a punitive discharge, his overall record of service did not support the issuance of general or honorable discharge by the separation authority at the time and it does not support an upgrade of his discharge now.

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20110017240



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ABCMR Record of Proceedings (cont)                                         AR20110017240



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