BOARD DATE:	  16 August 2012

		DOCKET NUMBER:  AR20120003665 


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 his record be corrected by changing the type of discharge he received and to remove the allegation of his being absent without leave (AWOL).  

2.  The applicant states he was not AWOL and was in training according to his orders.  He claims he was first informed that he was accused of being AWOL by his mother around December 2009 while he was in advanced individual training (AIT) class.  He claims he tried to resolve the problem though his unit noncommissioned officers who blew him off and after a time he was told he was kicked out of class and being discharged for being AWOL.  He also claims other errors in his record, such as receiving dog tags with an incorrect social security number, could have resulted in his being mixed up with someone else, possibly another Soldier in his unit who had the same name.

3.  The applicant provides no documentary evidence in support of his request.  

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows he enlisted in the Regular Army on 21 August 2008.  

2.  The applicant departed AWOL from his unit at Fort Gordon, Georgia on 
18 November 2009, and a DA Form 4187 (Personnel Action), dated 
19 November 2009, reported the applicant’s duty status changed from present for duty to AWOL, effective 18 November 2009.  
3.  A DA Form 4187 dated 18 December 2009 reported a duty status change on the applicant from AWOL to dropped from the rolls (DFR), effective 18 December 2009.

4.  The applicant remained away 79 days until surrendering to military authorities at Fort Gordon on 5 February 2010.   A DA Form 4187 reported the applicant’s duty status changed from DFR to present for duty, effective 5 February 2010.  

5.  On 11 February 2010, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from on or about 
18 November 2009 to on or about 5 February 2010.  

6.  On 11 February 2010, the applicant consulted with legal counsel and after being advised of the basis of the contemplated trial by court-martial and the maximum permissible punishment under the UCMJ, of the possible effects of a discharge under other than honorable conditions, and of the rights and procedures available to him, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial and declined to submit statements in his own behalf.  

7.  In his request for discharge, the applicant acknowledged that by submitting the request for discharge he was admitting he was guilty of the charge against him or of a lesser-included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He also confirmed his understanding that if his request for discharge were approved, he could receive an under other than honorable conditions discharge.  He further stated he understood that receipt of an under other than honorable conditions discharge could result in his being deprived of many or all Army benefits, his possible ineligibility 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 State and Federal laws. 

8.  On 17 March 2010, the separation authority approved the applicant's discharge request and directed the applicant be discharged under other than honorable conditions.  On 26 March 2010, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time shows he completed a total of 1 year, 4 months, and 19 days of creditable active military service and that he accrued 79 days of time lost due to AWOL.  

9.  On 9 November 2011, the Army Discharge Review Board (ADRB), after carefully considering the applicant’s entire record of military service and issues and documents presented by the applicant, determined his discharge was proper and equitable and it voted unanimously not to change the characterization of or reason for his discharge.  
10.  Army Regulation 635-200 (Personnel Separations) 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 or general discharge is authorized, a discharge UOTHC is normally considered appropriate.

	b.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  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 would be clearly inappropriate.

	c.  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 correct his record to show he was not AWOL and to change the type discharge he received has been carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The evidence of record contains valid duty status change documents confirming the applicant departed AWOL on 18 November 2009, was DFR on 
18 December 2009, and returned to a present for duty status on 5 February 2010, after being away for 79 days.  There is no evidence confirming his assertion that he was present in his organization and attending training during this period. 

3.  The record shows the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  It also shows that after consulting with defense counsel, the applicant voluntarily requested discharge for the good of the service 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.  The evidence also confirms he voluntarily requested discharge to avoid a court-martial that could have resulted in a punitive discharge.  
4.  Given the applicant's admission of guilt and the voluntary nature of his discharge request coupled with his declining to submit a statement in his own behalf during his discharge processing, his argument that he was not AWOL is not sufficiently credible to support relief.  His record documents no acts of significant achievement or valor and did not support the issuance of an honorable or a general discharge by the separation authority at the time of his discharge and it does not support an upgrade to an honorable or a general discharge at this late date.  Further, there is no error or injustice related to his separation processing that would support a change to the authority and reason for 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)                                         AR20120003665



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ABCMR Record of Proceedings (cont)                                         AR20120003665



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