IN THE CASE OF:	 

		BOARD DATE:	  18 October 2012

		DOCKET NUMBER:  AR20120008191 


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.

2.  The applicant states:

	a.  prior to enlisting in the Regular Army (RA), he served honorably in the Army National Guard;

	b.  due to difficulties in his marriage and not being adequately equipped to deal with them, he went absent without leave (AWOL) for 34 days in an attempt to save his "timeless romance"; 

	c.  his recruiter told him in order to reenlist, his discharge had to be upgraded;

	d.  he has a desire to serve; and 

	e.  he brings to our attention his education as a nurse and an emergency medical technician.

3.  The applicant did not provide any 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 records show that after prior enlisted service, he enlisted in the RA on 29 September 1998.

3.  His record contains a DD Form 458 (Charge Sheet) initiated on 2 November 1998 which shows he was charged with one specification of AWOL from on or about on 2 October 1998 until [return from AWOL].

4.  His record contains a DA Form 4187 (Personnel Action), dated 2 November 1998, which shows he was dropped from the unit rolls (DFR) on 1 November 1998.

5.  His record contains a DD Form 616 (Report of Return of Absentee), dated 8 March 1999, which shows he was apprehended and returned to military control on 8 March 1999.

6.  The specific facts and circumstances surrounding the applicant’s discharge are not available for review.  However, the available evidence includes a properly-constituted DD Form 214 that contains the authority and reason for    the applicant’s discharge.  The DD Form 214 shows he was discharged on          30 August 1999 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, in lieu of court-martial, with issuance of an under other than honorable conditions discharge after completing a total of 5 months and 25 days of active service with 156 days of lost time.

7.  On 7 June 2006, the Army Discharge Review Board denied his request to upgrade his discharge. 

8.  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, an undesirable discharge is normally considered appropriate.

	a.  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

	b.  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 records show 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.  All requirements of law and regulation were presumably met and his rights were fully protected throughout the separation process.  Further, his discharge appears to accurately reflect his overall record of service.

2.  Although the applicant's record is void of the specific facts and circumstances surrounding his discharge processing, it does contain a properly-constituted
DD Form 214 that identifies the reason and the characterization of the applicant‘s discharge.  The available evidence clearly shows he elected to go AWOL for a total of 156 days.  

3.  His post-service accomplishments and desire to serve again are duly noted.  However, 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 also renders his service unsatisfactory.  Therefore, he is not entitled to an honorable or 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 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)                                         AR20120008191





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ABCMR Record of Proceedings (cont)                                         AR20120008191



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