IN THE CASE OF:	  

		BOARD DATE:	  17 May 2012

		DOCKET NUMBER:  AR20120000383 


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 general under honorable conditions.

2.  The applicant states his discharge should be changed to reflect his current state of character since his separation.  He further states that since his discharge, he has had a history of steady work along with receiving his Bachelor of Science degree in Physics from Central Western University.  The applicant concludes he has matured since the mistakes made when he was younger and has applied them to his daily life.  He knows he would be an exceptional asset to the Army if given the opportunity to enlist.

3.  The applicant provides a character reference letter and his transcript from Central Western University.

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 Regular Army on 12 January 2006.  He completed basic combat training before going on convalescent leave on 20 April 2006.

3.  The applicant's records show the following two absent without leave (AWOL) periods:

* 20 May 2006 through 24 February 2007
* 1 March 2007 through 28 January 2008

4.  On 7 February 2008, a DD Form 458 (Charge Sheet) was prepared preferring court-martial charges against the applicant for two specifications of violating Article 86 of the Uniform Code of Military Justice (UCMJ) for being AWOL.

5.  On 8 February 2008, the applicant consulted with legal counsel and after being advised of the basis of the contemplated trial by court-marital and the maximum permissible punishment under the UCMJ he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 10.

6.  On 19 March 2008, the separation authority approved the applicant's request for discharge and directed the issuance of a discharge UOTHC.  On 11 April 2008, the applicant was discharged accordingly.  His DD Form 214 shows he completed 6 months and 27 days of creditable active military service with 613 days of lost time.

7.  The applicant submits a character reference letter from his brother wherein he states the applicant has grown from an "uncertain teenager" to a man who knows what he wants in life.  The brother further states he is aware of the unfortunate situation the applicant placed himself in the past and now is impressed with his deep sense of loyalty, utmost professionalism, and personal dedication to being the very best.  The brother concludes he would be extremely proud to serve alongside the applicant if he is allowed back into the military as the man he is today.

8.  The applicant submits a transcript from Central Western University, dated 18 December 2009, which shows he received a Bachelor of Science degree in Physics.

9.  On 19 April 2010, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

10.  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.

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 applicant's request to upgrade his discharge to general under honorable conditions based on his post-service achievements and conduct was carefully considered.  However, good post-service conduct alone is not a basis for upgrading a discharge.

2.  The applicant voluntarily requested discharge from the Army in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

3.  Based on his record of indiscipline, which included 615 days of lost time due to AWOL, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, the applicant is not entitled to 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 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)                                         AR20120000383



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120000383



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1