IN THE CASE OF:	  

		BOARD DATE:	  26 July 2012

		DOCKET NUMBER:  AR20120001303 


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 an under honorable conditions (general) discharge.

2.  The applicant states he previously applied to the Army Discharge Review Board (ADRB) and was denied an upgrade of his discharge.  He has worked very hard since the birth of his twins in 2007.  He earned a Bachelors of Science in Marketing degree and had been supporting a household of four single handedly until November 2010 when his wife decided to join the Army because he needed help paying the bills, she needed to pay back her student loans, and childcare expenses seemed to be piling up quicker than rent.  He is a veteran who served overseas in Iraq and feels he could still be beneficial to the Army.  He always wanted to rejoin the military and would hate to lose the opportunity because he was absent without leave (AWOL).  He begs the Board for leniency.

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  After having had prior enlisted reserve service, the applicant enlisted in the Regular Army on 10 August 2006 and held the military occupational specialty 88M (Motor Transport Operator).  He was assigned to Headquarters, A Company, 447th Signal Battalion, Fort Gordon, GA.  The highest grade/rank he held while serving on active duty was private first class/E-3.

2.  His record contains three DA Forms 4187 (Personnel Action) which show his duty status changed from Present for Duty (PDY) to AWOL on 11 October 2006, from AWOL to Dropped from Rolls (DFR) on 10 November 2006, and from DFR to PDY on 14 January 2007 when he surrendered to military authorities at Fort Gordon, GA.

3.  Orders Number 22-21, issued by Headquarters, U.S. Army Personnel Control Facility, U.S. Army Armor Center and Fork Knot, Fort Knox, KY, on 22 January 2007 reassigned him to the Special Processing Company, U.S. Army Personnel Control Facility, Fort Knox, KY.

4.  On 25 January 2007, court-martial charges were preferred against him for one specification of being AWOL from 11 October 2006 to 14 January 2007.

5.  On 25 January 2007, 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 the procedures and rights that were available to him.  Subsequent to receiving this legal counsel and without coercion, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 10, for the good of the service - in lieu of trial by court-martial.

6.  In this 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 a 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 Department of Veterans Affairs, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  

7.  On 8 February 2007, the separation authority approved his 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, with an under other than honorable conditions discharge and reduction to private (PV1)/E-1.  Accordingly, he was discharged on 2 March 2007.

8.  His DD Form 214 (Certificate of Release of Discharge from Active Duty) shows he was discharged on 2 March 2007 in the rank/grade of PV1/E-1 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial and received a reentry (RE) code of 4 and a separation code of KFS.  This form further confirms he completed 3 months and 20 days of creditable active service with 94 days of lost time due to AWOL.

9.  On 5 May 2010, the ADRB considered his request to upgrade his discharge to a general under honorable conditions discharge.  The ADRB determined he was properly and equitably discharged and denied his request to upgrade his discharge.

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 applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  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.

2.  His record of indiscipline includes 94 days AWOL.  Based on his record of indiscipline, 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 a general discharge.

3.  In view of the foregoing, there is no basis for granting relief in this case.



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)                                         AR20120001303





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ABCMR Record of Proceedings (cont)                                         AR20120001303



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