BOARD DATE:	  29 May 2012

		DOCKET NUMBER:  AR20110020523 


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 under other than honorable conditions discharge to a general discharge.

2.  The applicant states:

* he believes his discharge was inequitable because it was based on one incident in 36 months of service with no other adverse actions
* his discharge is inequitable due to the extended amount of time from the date he requested the discharge to the actual date of his discharge
* the Army Discharge Review Board (ADRB) originally heard his case in 2007
* he submitted additional evidence that he thought the ADRB had not reviewed
* he was told he had to apply to the Army Board for Correction of Military Records (ABCMR) since the ADRB disapproved his request for an upgrade 

3.  He provides:

* DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States), dated 30 June 1998
* DA Form 3286-66 (Statement of Understanding – U.S. Army Incentive Enlistment Program), dated 30 June 1998


* DA Form 3286-67 (Statement of Understanding  (Army Policy)), dated
22 November 1997
* DA Form 3286-70 (Addendum to Statements for Enlistment (Additional Requirements for Enlistment Options)) , dated 30 June 1998
* DA Form 3286-59 (Statement for Enlistment – U.S. Army Enlistment Program – U.S. Army DEP), dated 22 November 1997
* DA Form 3286-64 (Statement of Enlistment – U.S. Army Station/Unit/Command/Area Enlistment Program), dated 22 November 1997
* DD Form 1966 (Record of Military Processing – Armed Forces of the United States), dated 15 November 1997
* DD Form 2366 (Montgomery GI Bill Act of 1984 (MGIB)), dated
22 November 1997
* Permanent Orders 340-421, issued by Headquarters, U.S. Army Infantry Center, Fort Benning, GA, dated 6 December 1998
* DD Form 458 (Charge Sheet), dated 14 June 2001
* Separation packet, approved on 14 January 2002
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* ADRB – Case Report and Directive, Case Number AR20070002278, dated 4 May 2007

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 U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 22 November 1997 for a period of 8 years.  He was discharged from the USAR DEP on 29 June 1998 and he enlisted in the Regular Army on 30 June 1998 for a period of 4 years.  He completed training and he was awarded military occupational specialty (MOS) 11B (Infantryman).


3.  He submitted:

	a.  his DD Form 1966 series, dated 15 November 1997, that shows his record of processing into the Armed Forces of the United States;

	b.  his DD Form 2366, dated 22 November 1997, that shows he enlisted for the MGIB;

	c.  his DD Form 4 series, dated 22 November 1997, that shows he enlisted in the USAR DEP and subsequent enlistment in the RA on 30 June 1998;

	d.  his DA Form 3286 series, dated between 11 November 1997 and 30 June 1998, that shows he enlisted for a Ranger unit, station of choice, the Army Cash Bonus, and understood his contractual obligations, guarantees, and annexes to his enlistment contract;

	e.  Permanent Orders Number 340-421, dated 6 December 1998, that show he was awarded the Parachutist Badge and MOS 11B1P (indicating parachutist qualified).

4.  His record contains a DD Form 458 that shows he was charged with being absent without leave (AWOL) from on or about 27 March to on or about 11 June 2001.

5.  On 15 June 2001, the applicant was advised by legal counsel of the basis for his contemplated trial by court-martial and the maximum permissible punishment authorized under the Uniform Code of Military Justice of the possible effects of an under other than honorable conditions discharge, and of the procedures and rights available to him.  Having been so advised, he voluntarily submitted a request for discharge 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.

6.  He acknowledged:

	a.  he was making the request of his own free will and he had not been subjected to any coercion whatsoever by any person;

	b.  he had been advised of the implications that were attached to his request and that by submitting his request he also acknowledged he was guilty of the charges against him or of a lesser-included offense that also provided for the imposition of a bad conduct or a dishonorable discharge;


	c.  he did not desire further rehabilitation or desire to continue in the military; 

	d.  he understood if his request were accepted he could be issued an under other than honorable conditions discharge, he understood the effects of such a discharge, and he understood that as a result of the issuance of such a discharge he would be deprived of many or all Army benefits including all benefits administered by the Department of Veterans Affairs (VA);

	e.  he understood he could expect to encounter substantial prejudice in civilian life if he was issued an under other than honorable conditions discharge;

	f.  he understood that once his request for discharge was submitted, it could only be withdrawn with the consent of the commander who exercised court-martial authority; and

	g.  he was advised he could submit any statements he desired to accompany his request for discharge; however, he elected not to do so.

7.  On 21 December 2001, the applicant's acting commander recommended approval of his request for discharge with issuance of an under other than honorable conditions discharge.

8.  On 14 January 2002, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  The separation authority directed the applicant be given an under other than honorable conditions discharge and reduced to private (PV1)/E-1.

9.  On 27 February 2002, he was discharged accordingly.  The DD Form 214 he was issued confirms he completed 3 years, 5 months, and 12 days of creditable active service.

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


11.  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 evidence of record shows the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid a trial by court-martial.  He acknowledged he could be ineligible for many or all benefits administered by the VA and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  There is no indication that his request was made under coercion or duress.

2.  The evidence of record further shows he had 74 days of time lost due to AWOL from 27 March to 11 June 2001.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.

3.  There is no evidence that his rights were violated or that he was not given due process of the law in regards to his separation processing.

4.  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)                                         AR20110020523



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ABCMR Record of Proceedings (cont)                                         AR20110020523



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