IN THE CASE OF:	  

		BOARD DATE:	 11 December 2012 

		DOCKET NUMBER:  AR20120010126 


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.

2.  The applicant states he was not in the right state of mind due to feeling overwhelmed and depressed because he did not have enough money to help his family.  He states he is trying to get his life back together and set an example for his family.

3.  He provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and two statements of support.    

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 10 July 2001.  He was awarded the military occupational specialty of 11B (Infantryman).  The highest rank/grade he held was private/E-2.

3.  On 17 September 2003, court-martial charges were preferred against the applicant for:

* being absent without leave (AWOL) from on or about 10 October 2001 until on or about 12 March 2002 when he was apprehended by civilian authorities and returned to military control
* being AWOL from on or about 26 May 2002 until on or about 4 August 2003 when he was apprehended by civilian authorities and returned to military control

4.  He consulted with counsel and voluntarily requested discharge in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

	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 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 not to submit a statement in his own behalf.

5.  On 24 October 2003, his request for discharge in lieu of trial by court-martial was approved by the appropriate authority.

6.  On 5 November 2003, he was discharged accordingly.  The DD Form 214 he was issued shows he completed 8 months and 5 days of creditable active service with a total of 591 days of lost time.

7.  On 8 May 2007, the Army Discharge Review Board denied his request to upgrade his discharge under other than honorable conditions.

8.  He submits two statements of support indicating he is making improvements in his life.

9.  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 was normally considered appropriate.

	b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization was clearly inappropriate.

	c.  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.

DISCUSSION AND CONCLUSIONS:

1.  He admitted guilt to the charge of being AWOL for 588 days.  The fact that two of his periods of AWOL were 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.  His statement and the statements of others that he is trying to get his life back together and set an example for his family is encouraging.  However, this is not a basis for changing a properly-issued discharge.

5.  In view of the foregoing, there is an insufficient basis upon which to upgrade his discharge to a general discharge or honorable 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)                                         AR20120010126



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ABCMR Record of Proceedings (cont)                                         AR20120010126



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