BOARD DATE:	  7 August 2012

		DOCKET NUMBER:  AR20120002004 


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, in effect, an upgrade of his under other than honorable conditions (UOTHC) discharge. 

2.  The applicant states:

   a.  He was absent without leave (AWOL) from 20 April through 28 July 2006.  His commanding officer lied to him and this led to his AWOL status.   
   
   b.  He joined the Army in January 2006 and felt it was his calling to serve.  He was glad to volunteer for Airborne Infantry, even though his scores would have allowed him to pursue other less dangerous areas of the Army.  The entire time he was in training he tried to do his best and not get into any trouble.
   
   c.  He received an injury in February 2006, shoulder muscle spasm.  He was injured doing training in their barracks as instructed by his drill sergeant.  The drill sergeant threatened him not to tell that the injury had happened in the bay and made him wait until Tuesday to seek medical treatment.  The drill sergeant had him claim it was done on Monday at the training they did that day (as stated on his medical record).
   
   d.  He received his second injury, a stress fracture to the right femur, and was placed on convalescent leave in March 2006.  While at basic he received divorce papers from his wife of 7 years.  She told him another man was the father of their children.  He took all of this badly and did not return like he was supposed to.  He did however try several times to make contact with anyone who could help him resolve the issue of being AWOL.  He later decided the best course of action was to return to Fort Benning, GA, and face any punishment that was due.
   
   e.  Upon his return, Captain Fxxxxxxx told him that he had been dropped from the roster and that he was simply to just return home and wait on his discharge papers that had already been mailed.  Having no reason not to trust him, he did so.  This is why CPT Fxxxxxxx is mostly to blame for the additional days of AWOL he received from the time he left his office until 29 July 2006, the day he was picked up by two Marshal County sheriffs.
   
   f.  He was given a chance to speak with a Judge Advocate General officer who didn't give him any help in proving that he was unfairly tricked into the extra days of AWOL.  He knows that he caused some of the reason for his discharge and does not wish to make it seem that he was not at fault.  He would like to return to active duty to finish his contract with the Army.   

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* 18 Standard Forms (SFs) 600 (Health Record - Chronological Record of Medical Care) - 18 pages
* 6 Radiologic Examination Reports
* a letter of support from his mom

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel defers requests and statements to the applicant and provides no additional evidence.

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 military record shows he enlisted in the Regular Army, in pay grade E-1, on 18 January 2006, for 3 years.  He did not complete advanced individual training for award of a military occupational specialty.

3.  He provides copies of 18 SFs 600 which show between February and March 2006 he received treatment for his right ankle, a common cold, muscle spasm, shoulder strain, and a stress fracture. 

4.  He was reported AWOL on 20 April 2006 and dropped from the rolls of his organization on 21 May 2006.  He was apprehended by civilian authorities and returned to military control on 29 July 2006.

5.  On 14 August 2006, a DD Form 458 (Charge Sheet) was prepared by the Commander, Special Processing Company, U.S. Army Personnel Control Facility, Fort Knox, KY.  He was charged with one specification of being AWOL from 20 April through 29 July 2006.  On the same date court-martial charges were preferred against him.

6.  On 14 August 2006, after consulting with 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.  In doing so, he acknowledged he had not been coerced with respect to his request for discharge.  He also acknowledged he understood he could be issued a UOTHC discharge, the results of the issuance of such a discharge, and he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA).  He waived his rights and elected not to submit a statement in his own behalf.

7.  On 25 August 2006, the applicant's battalion commander forwarded the applicant's request for appropriate action.  The battalion commander stated:

   a.  The applicant's conduct had rendered him triable by courts-martial under circumstances which could lead to a bad conduct or dishonorable discharge. Based on the applicant's previous record, punishment could be expected to have a minimal rehabilitation effect.  He believed a discharge at that time to be in the best interest of all concerned.  
   
   b.  There did not appear to be any reasonable ground to believe that the applicant at the time of his misconduct was mentally defective, deranged, or abnormal.  He recommended the applicant be discharged UOTHC.

8.  On 30 August 2006, the separation authority approved the applicant's request for discharge for the good of the service and directed the issuance of a discharge UOTHC and his reduction to pay grade E-1.

9.  He was discharged on 13 September 2006, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial, with a UOTHC discharge.  He was credited with completing 4 months and 17 days of net active service with 100 days of lost time.

10.  On 28 November 2007, the Army Discharge Review denied his request for an upgrade of his character of service/and or reason for his discharge.  

11.  He provides a letter from his mother wherein she requests a review of his case and help so he can get past this matter.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of the regulation 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 UOTHC is normally considered appropriate.

	b.  Paragraph 3-7a states an honorable discharge is a separation with honor. 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 will be inappropriate.

	c.  Paragraph 3-7b states 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 evidence of record shows the applicant was charged with being AWOL for 100 days, misconduct triable by a court-martial.  Upon receipt of the charges he voluntarily requested discharge in lieu of trial by court-martial.  In doing so, he admitted guilt to the offense.  He also acknowledged that he could be discharged UOTHC and that he could be ineligible for many or all benefits administered by the VA.  He waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully charged.  He also elected not to submit  a statement in his own behalf when he could have raised this issue at the time.

2.  He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a general or fully honorable discharge.

3.  It appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.

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)                                         AR20120002004





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ABCMR Record of Proceedings (cont)                                         AR20120002004



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