IN THE CASE OF:	  

		BOARD DATE:  30 July 2013

		DOCKET NUMBER:  AR20120020805 


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 discharge under other than honorable conditions be upgraded.

2.  The applicant states his children's mother was using drugs and she ran off.  He requested leave to take care of his children, but his request was denied. Therefore, he left to protect his children.  He further contends that in February 2009 the Army deemed his discharge sufficient to allow him to reenlist but he chose not to do so.

3.  The applicant provides:

* A Reenlistment Eligibility Data Display (REDD ) Request, dated 
10 February 2009
* Washington State Driver License
* Social Security Card
* DA Form 5500 (Body Fat Content Worksheet)
* Designation of Guardian, dated11 February 2009

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.  Having had prior service in the Army National Guard, he enlisted in the Regular Army in military occupational specialty 11B (Infantryman) on 9 March 1989.  He was assigned to Baumholder, Germany from 31 March 1989 to 
14 May 1992 and he was assigned to Fort Hood TX in June 1992.

3.  An Administrative Letter of Reprimand (LOR), dated 23 May 1993, shows the applicant was reprimanded for driving while under the influence of alcohol on
22 May 1993.  The applicant acknowledged receipt of the LOR and elected not to submit a rebuttal.  The LOR was filed in the applicant's Army Military Human Resource Record (formerly known as the Official Military Personnel File).

4.  The applicant was absent without leave (AWOL) from 2 March 1994 until he was apprehended by civil authorities and returned to Fort Sill, OK, on 29 October 1996.  Court-martial charges were preferred against him for this AWOL offense on 31 October 1996. 

5.  On 31 October 1996, after consulting with legal counsel, he voluntarily requested a discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  He was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Federal and State veterans benefits.  He elected not to submit a statement in his own behalf.

6.  On the same date, the applicant was placed on voluntary excess leave pending completion of his discharge action under the provisions of chapter 10, Army Regulation 635-200. 

7.  The available evidence shows the applicant's immediate commander recommended that the applicant be discharged for the good of the service in lieu of trial by court-martial with the issuance of an under other than honorable conditions discharge.  His commander stated that the applicant had gone AWOL for personal reasons and he had become disillusioned with the military.



8.  On 22 November 1996, the appropriate authority approved his request for discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial with the issuance of an under other than honorable conditions discharge, and reduction to pay grade E-1.

9.  On 23 December 1996, he was discharged accordingly.  His DD Form 214 shows he completed 5 years, 7 months, and 23 days of total active service with 972 days of lost time.

10.  He provided a REDD report, dated 10 February 2009.  This report does not specify the type of discharge he received had been deemed sufficient to allow him to reenter the military.

11.  The applicant also provided a Designation of Guardian Statement, dated 
11 February 2009, which shows the mother of his minor child (age 9) is deceased and that the applicant's brother would assume guardianship of the applicant's minor child in the event the applicant becomes unable to physically care for the child or during absences necessitated by deployment with the military.  This document further indicates the applicant was a member of the U.S. Army; however, there is no record of military service for the applicant after 1996.

12.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

13.  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 under the Uniform Code of Military Justice (UCMJ) includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate, but the separation authority may direct an honorable or a general discharge if such is merited by the Soldier's overall record and if the Soldier's record is so meritorious that any other characterization clearly would be improper.

	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.

14.  The U.S. Military Entrance Processing Command Regulation 601-23 (Personnel Procurement - Enlistment Processing) states that upon check-in of all prior military service applicants, the Military Enlistment Processing Station will obtain either a DD Form 214 (Certificate of Release or Discharge from Active Duty) or the REDD printout.  The REDD report is used in lieu of the DD Form 214 to verify an individual's prior service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests his discharge under other than honorable conditions be upgraded.

2.  The evidence of record confirms he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  After consulting with defense counsel he voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met.  The rights of the applicant were fully protected throughout the separation process.

3.  The applicant contends he went AWOL after he was denied leave; however, there is no evidence to show this and the applicant has failed to provide evidence to show that going AWOL was the only solution to resolving his personal circumstance.  His record of service shows he had 972 days of lost time amounting to misconduct which clearly did not meet the standards of acceptable conduct for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

4.  The applicant contends that in 2009 his service was found suitable for him to reenter the military; however, a REDD report is only used to verify an individual's prior service and does not determine eligibility for reentrance.

5.  In view of the foregoing, his request should be denied.







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)                                         AR20120020805



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120020805



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1