IN THE CASE OF:	  

		BOARD DATE:	    8 May 2012

		DOCKET NUMBER:  AR20110022828 


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 discharge under other than honorable conditions be upgraded.

2.  The applicant states his discharge was based on an isolated incident.  He was young and only 6 months away from his ETS (expiration of term of service) date when he made a stupid mistake.  It has always bothered him that he did not seek a formal court-martial and attempt to stay in the Army.  He now has a family and provides for them to the best of his ability.  He wants to be proud of his service and set a good example to his young son.

3.  The applicant provides no additional evidence in support of his application.

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.  He enlisted in the Regular Army, 6 days short of his 18th birthday with parental consent, on 18 June 1991 for a period of 4 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty 55B (Ammunition Specialist).  After completing a tour in Germany he was assigned to Headquarters and Headquarters Troop, 1st Battalion, 7th Cavalry with a reporting date of 2 December 1993.

3.  On 21 December 1994, court-martial charges were preferred against the applicant for being absent without leave (AWOL) from on or about 7 October 1994 to on or about 16 December 1994.

4.  On 22 December 1994, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, for the good of the service - in lieu of trial by court-martial.  He acknowledged he understood the elements of the offense he was being charged with and that he was:

* making the request of his own free will
* guilty of the offense with which he was charged
* afforded the opportunity to speak with counsel prior to making this request
* advised he could be issued an under other than honorable conditions discharge
* advised he could submit any statements he desired in his own behalf

5.  He did not submit any statements in his own behalf.  In addition, he acknowledged he understood he could expect to encounter substantial prejudice in civilian life if an under other than honorable conditions discharge was issued to him.  He also acknowledged he understood he:

* would be deprived of many or all Army benefits
* may be ineligible for many or all Department of Veterans Affairs benefits
* may be deprived of his rights and benefits as a veteran under both Federal and State laws

6.  His commander recommended his request for discharge be approved and that he receive an under other than honorable conditions discharge.


7.  On 31 January 1995, the appropriate authority approved the applicant's request for discharge for the good of the service.  He directed his reduction to private (PV1)/E-1 and that he receive an under other than honorable conditions discharge.

8.  On 24 February 1995, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He completed 3 years, 5 months, and 28 days of active service that was characterized as under other than honorable conditions.  He had 39 days time lost.

9.  There is no indication 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 sets forth the basic authority for the administrative separation of enlisted personnel.  

	a.  Chapter 10 states 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.  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.  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 age at time of enlistment was noted.  However, he was 
21 years old and had completed over 3 years of service at the time he went 

AWOL.  Many Soldiers were enlisted at a young age and went on to complete their enlistments and receive honorable discharges.  Therefore, the age of the applicant cannot be used as a reason to change a properly issued discharge.

2.  He was charged with an offense punishable by a punitive discharge.  He consulted with counsel, voluntarily admitted guilt to the offense or lesser offenses included, and requested discharge in lieu of court-martial.  He acknowledged in his request for discharge that he could receive an under other than honorable conditions discharge.  

3.  He contends he was discharged based on one isolated incident.  However, he was discharged because he requested it in lieu of a court-martial.

4.  The applicant's 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.

5.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  A discharge under other than honorable conditions is normally considered appropriate when a member is separated under the provisions of chapter 10.  There is no evidence of procedural or other errors that would have jeopardized his rights.  

6.  The seriousness of the offenses he was charged with show his service to be unsatisfactory.  

7.  In view of the above, there is an insufficient basis to upgrade his discharge to an honorable discharge or a general discharge under honorable conditions.

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)                                         AR20110022828



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ABCMR Record of Proceedings (cont)                                         AR20110022828



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