IN THE CASE OF:
BOARD DATE: 23 May 2012
DOCKET NUMBER: AR20110023277
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 discharge under other than honorable conditions (UOTHC) to a general discharge (GD).
2. The applicant states his UOTHC discharge is unjust and he believes it should be upgraded based on the passage of time.
3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).
CONSIDERATION OF EVIDENCE:
1. The applicant's military record shows he enlisted in the Regular Army on 6 April 1999. His DA Form 2-1 (Personnel Qualification Record) shows during his initial entry training he departed absent without leave (AWOL) on 19 September 1999.
2. On 12 June 2000, a DD Form 458 (Charge Sheet) was prepared preferring two court-martial charges against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) by departing AWOL during the following periods:
* 19 September - 15 December 1999
* 17 December 1999 - 12 June 2000
3. On 16 June 2000, the applicant 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 UCMJ, the possible effects of a UOTHC discharge, and of the procedures and rights available to him. Subsequent to receiving this legal counsel, he voluntarily requested discharge in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations Enlisted Personnel).
4. In his request for discharge the applicant acknowledged he understood he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. He also acknowledged he understood he could face substantial prejudice in civilian life if he was issued a UOTHC discharge.
5. On 24 October 2000, the separation authority approved the applicant's request for discharge, directed reduction to private/E-1, and discharge under the provisions of Army Regulation 635-200, chapter 10, with a UOTHC character of service.
6. On 15 November 2000, the applicant was discharged accordingly. His DD Form 214 shows he completed 10 months and 15 days of active military service during the period covered and he accrued 263 days of lost time.
7. On 7 January 2009, after having carefully reviewed the applicant's record and the issues he presented, the Army Discharge Review Board concluded the applicant's discharge was proper and equitable and voted to deny his request for an upgrade of his discharge.
8. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.
a. 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 discharge (HD) or a GD is authorized, a UOTHC discharge is normally considered appropriate.
b. Paragraph 3-7b of provides that a GD 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 HD.
DISCUSSION AND CONCLUSIONS:
1. The applicant requests an upgrade of his UOTHC discharge to a GD.
2. The U.S. Army does not have, nor has it had, a policy to automatically upgrade discharges. Each case is decided on its own merits when an applicant requests a change in discharge. Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.
3. The evidence of record shows the applicant was discharged due to the commission of an offense punishable under the UCMJ with a punitive discharge (for departing AWOL twice totaling 263 days). After consulting with legal counsel, the applicant voluntarily requested discharge in lieu of trial by court-martial. All requirements of law and regulation were met and the applicant's rights were fully protected throughout the separation process.
4. The applicant's misconduct rendered his service below that meriting a GD at the time of discharge from the Army and it does not support an upgrade now. Therefore, there is no basis upon which to grant the 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) AR20110023277
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