IN THE CASE OF:	  

		BOARD DATE:  31 July 2012

		DOCKET NUMBER:  AR20120002072 


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 to a general discharge and a change to his reason for separation.  He further requests to appear before the Board.

2.  He states he doesn't know why he made the decision to get out of the military.  He was off his medication when he went home for Christmas leave shortly after completing basic training and didn't return when he should have.  He wants to fix this by enlisting.

3.  He provides no additional documentary 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.  His military records show he enlisted in the Regular Army on 21 September 2006.  He did not complete initial entry training and was not awarded a military occupational specialty.  The highest rank/grade he held was private/E-1.

3.  On 10 September 2007, court-martial charges were preferred against the applicant for being absent without leave (AWOL) from on or about 3 January 2007 until on or about 4 September 2007 when he was apprehended by civilian authorities and returned to military control.

4.  On 10 September 2007, he consulted with counsel and voluntarily requested discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200 (Active Duty Enlisted Administrative Separations).

	a.  He acknowledged he was making the request of his own free will and had not been subjected to coercion with respect to his request for discharge.  He acknowledged he had been advised of the implications attached to his request.  He acknowledged he understood the elements of the offenses(s) charged and was guilty of the charge(s) against him or of a lesser-included offense(s) which also authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood if his discharge request were approved he might be discharged under other than honorable conditions.  He acknowledged he had been advised and understood the possible effects of an under other than honorable conditions discharge and as a result of the issuance of such a discharge he would be deprived of many or all Army benefits, he may be ineligible for many or all benefits administered by the Department of Veterans Affairs, and he may be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also understood he might expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  He further understood there is no automatic upgrading or automatic review of a less than honorable discharge by any government agency or the ABCMR.

	b.  He waived his rights and elected to submit a statement in his own behalf.  In his statement he indicated his mother had some health issues while he was home on Christmas leave and he was scared something would happen to her while he was gone.  Also, he was scared about the prospect of being stuck with a communications military occupational specialty and felt an infantry military occupational specialty would have been a better fit for him.

5.  On 19 October 2007, his request for discharge in lieu of trial by court-martial was approved by the appropriate authority.

6.  On 9 November 2007, he was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed 5 months and 18 days of creditable active service with 244 days of lost time.  His DD Form 214 shows the entry "in lieu of trial by court-martial" in item 28 (Narrative Reason for Separation).

7.  On 14 October 2008, the Army Discharge Review Board denied his request to upgrade his discharge under other than honorable conditions.

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

	a.  Chapter 10 states a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt.  A discharge under other than honorable conditions is normally considered appropriate.

	b.  A general discharge is a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

9.  Army Regulation 15-185 (Army Board for Correction of Military Records) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant's request for the correction of a military record.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  He admitted guilt to the charge of being AWOL for 244 days.  The fact that his period of AWOL was terminated by apprehension by civilian authorities raises doubt as to his intention to return to military control of his own accord.

2.  This serious misconduct warranted his discharge under other than honorable conditions.  Both his character of service and the reason for his discharge were appropriate considering the facts of the case.  He was properly and equitably discharged.  The records contain no indication of procedural or other errors that would have jeopardized his rights.

3.  He voluntarily requested discharge to avoid trial by court-martial.  His DD Form 214 correctly shows he was separated in lieu of trial by court-martial.

4.  While a desire to enlist again in the Army is commendable, this is not a basis for changing a properly-issued discharge or reason for separation.

5.  In view of the foregoing, there is an insufficient basis upon which to upgrade his discharge to a general discharge or for changing his reason for separation.

6.  With respect to the personal hearing, his request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice 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 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)                                         AR20120002072



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ABCMR Record of Proceedings (cont)                                         AR20120002072



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