IN THE CASE OF:	  

		BOARD DATE:	  19 April 2012

		DOCKET NUMBER:  AR20110022055 


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 his under other than honorable conditions discharge be upgraded to honorable.

2.  The applicant states:

	a.  He joined the Army in 2002 out of love for the constitution and because he felt it was his duty to defend the land that he loved.  He comes from a Muslim background and Middle-Eastern culture and he expected to be treated with dignity as a Soldier but he was not.  He was called a terrorist, Bin Laden's cousin, and he was persecuted every time he pronounced his name.  He was deprived from practicing his faith and of being off on weekends because he was the only one who should clean the unit while other Soldiers were enjoying their rights.  He was threatened by his squad leader that he could be killed on the battlefield and it would be reported as an accident.  He was forced to low crawl for a half mile one week after hernia surgery.  

	b.  He received a phone call from his sister in Cairo stating his mother's condition was urgent and he might not get the chance to see her again.  He asked his commander for leave to visit his mother in the hospital but it was denied while other Soldier's were allowed to enjoy 15 days with their girlfriends in other countries and other states.  He could not resist his sister's tears and he felt it was his duty to see his mother.  He admits that he made a mistake by going absent without leave (AWOL) and he will suffer for it.  He is also suffering from a disability that he will have for the rest of his life and would like his discharge to be upgraded to honorable.
3.  The applicant provides:

* A certificate of live birth
* Department of Veterans Affairs (VA) identification card
* Ten statements of support
* Four letters
* One page of a VA manual

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 records show he enlisted in the Regular Army on 18 April 2002 and he held military occupational specialty 92Y (Supply Specialist).  He was assigned to the 1st Battalion, 12th Infantry Regiment, Fort Carson, CO.

3.  On 1 April 2003, he was reported absent without leave (AWOL) from his assigned unit and he was dropped from the rolls on 1 May 2003.  

4.  On 29 May 2003, he was returned to military control.

5.  On 5 August 2003, court-martial charges were preferred against him for one specification of being AWOL from 1 April to 29 May 2003.

6.  On 6 August 2003, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested 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.
7.  In his request for discharge, he indicated he understood that by requesting discharge, he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also indicated that under no circumstances did he desire further rehabilitation or have a desire to perform further military service.

8.  In a statement he submitted on his own behalf, he apologized for his misconduct and stated he went AWOL because his mother was in the intensive care unit at a hospital in Cairo with a heart condition.  He went to Cairo from Denver without authority, knows it was stupid of him, and regretted it.  On his second day in Cairo, he contacted his unit and was told if he returned to the United States he would be arrested and sent to jail because it was wartime.  He joined the Army because he loved this country but he faced discrimination because of his race and religion and was called a terrorist.  He had a desire to go back to the civilian workforce and asked that he be given a general discharge instead of an under other than honorable discharge.

9.  His immediate commander subsequently recommended approval of the applicant's request for a discharge under the provisions of Army 
Regulation 635-200, chapter 10, in lieu of trial by court-martial with an under other than honorable characterization of service.

10.  On 20 August 2003, his intermediate and senior commanders recommended approval of the applicant's request for a discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial with an under other than honorable characterization of service.

11.  On 21 August 2003, the separation authority approved the applicant’s request for discharge in lieu of trial by court-martial with an under other than honorable characterization of service and directed he be reduced to private/E-1.  

12.  On 10 September 2003, he was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) and DD Form 215 (Correction to DD Form 214) he was issued shows he was discharged in lieu of trial by court-martial with an under other than honorable conditions characterization of service.  He completed 1 year, 3 months, and 23 days of creditable active service with 58 days of time lost due to AWOL.

13.  This is no evidence in his record that shows he requested leave due to his mother's illness.

14.  On 3 October 2007 and 12 September 2011, the Army Discharge Review Board denied his request for an upgrade of his discharge and determined he had been properly and equitably discharged.

15.  The applicant provides:

* Nine statements of support, undated, wherein family members and friends stated he was a brave, honest, kind person that endangered himself by standing by his mother when she was ill
* A statement of support, dated 5 February 2007, wherein a former supervisor stated the applicant was honest, trustworthy, and thoughtful of others

16.  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.

17.  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.

18.  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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant 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.  As such, he voluntarily requested a discharge to avoid a trial by court-martial.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

2.  His record of service shows he was AWOL for almost 2 months before he was returned to military control.  He acknowledged that he knew it was wrong but knowingly went AWOL anyway because his mother was ill.  There is no evidence that shows he ever requested leave due to his mother's illness and was denied leave by his commander.

3.  Based on this record of misconduct, 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 

________  ________  ________  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)                                         AR20110022055





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ABCMR Record of Proceedings (cont)                                         AR20110022055



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