BOARD DATE:	  19 December 2013

		DOCKET NUMBER:  AR20130005568 


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.

2.  The applicant makes no statement in support of his application.

3.  The applicant provides:

* orders awarding him the Combat Action Badge
* orders awarding him the Army Commendation Medal
* DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 5 July 2007
* Enlisted Record Brief
* Army Board for Correction of Military Records (ABCMR) Docket Number AR20090016953, dated 9 March 2010
* Army Discharge Review Board (ADRB) Docket Number AR20100011814, dated 10 December 2010
* two DD Forms 2808 (Report of Medical Examination), dated 22 July 2003 and 6 April 2007
* 12 pages from his Army Military Human Resource Record (AMHRR)
* U.S. Army Medical Command Form 699-4 (Mental Status Evaluation), dated 29 March 2007

CONSIDERATION OF EVIDENCE:

1.  On 13 January 2004, he enlisted in the Regular Army.

2.  He served in Iraq from 22 January 2005 to 10 January 2006 where he was awarded the Army Commendation Medal and Combat Action Badge.

3.  He was absent without leave (AWOL) on 13 October 2006.

4.  On 1 March 2007, he was apprehended and confined by civil authorities.  On 8 March 2007 he was returned to the control of military authorities and his status was changed to present for duty on 14 March 2007.

5.  On 29 March 2007, the applicant was evaluated by a licensed independent social worker (clinical practice).

	a.  The examiner determined the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.

	b.  She stated the applicant reported having previously received nonjudicial punishment (NJP) for marijuana use.  However, there is no record of this NJP in his AMHRR.

	c.  She diagnosed the applicant as having alcohol and cannabis dependence by history.

	d.  The evaluation was approved by the Chief of the Behavioral Health Clinic, a Medical Corps colonel.

6.  On 17 May 2007, he was informed he was being charged with being AWOL from on or about 13 October 2006 to on or about 14 March 2007.

7.  On 18 May 2007 after having examined the charge and specification against him, having had the benefit of his defense counsel's advice, and after consulting with him, the applicant offered to:

	a.  accept trial by summary court-martial,

	b.  plead guilty to the charge and specification at a summary court-martial, and

	c.  unconditionally waive any right he may have had to an administrative separation board for any administrative separation action recommending a discharge with a characterization of service as other than honorable that may be initiated as a result of the misconduct underlying the above-referenced charge.

8.  In exchange for his actions above, the convening authority agreed to refer his case to a summary court-martial.

9.  On 22 May 2007, he was referred to a summary court-martial for being AWOL from on or about 13 October 2006 to on or about 14 March 2007.  He pled guilty and was found guilty.  His sentence consisted of reduction to private, forfeiture of $867.00, and 30 days of confinement.  The sentence was adjudged on 1 June 2007.

10.  His commander's notification of separation action was not available for review.

11.  The applicant submitted a statement acknowledging he had been advised by counsel of the basis for the contemplated separation action to separate him for commission of a serious offense under Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c.  He acknowledged he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him.  He also acknowledged that as a result of a discharge under other than honorable conditions he might be ineligible for many or all benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life.  He did not submit statements in his own behalf.  He waived:

* consideration of his case by an administrative separation board
* a personal appearance before an administrative separation board
* consulting counsel and representation by military counsel or civilian counsel at no expense to the government

12.  His commander recommended his separation prior to the expiration of his term of service under the provisions of Army Regulation 635-200, paragraph 
14-12c, for commission of a serious offense and issuance of a discharge under other than honorable conditions.  The specific reason for separation was his period of AWOL from 13 October 2006 to 14 March 2007.

13.  His intermediate commanders recommended approval of his separation under the provisions of Army Regulation 635-200, paragraph 14-12c, for commission of a serious offense and characterization of his service as under other than honorable conditions.

14.  The appropriate authority approved the recommendation for his discharge under other than honorable conditions under the provisions of Army Regulation 635-200, paragraph 14-12c.  He also directed non-transfer of the applicant to the U.S. Army Reserve Individual Ready Reserve.

15.  On 5 July 2007, he was discharged by reason of misconduct for commission of a serious offense.  He completed 2 years, 11 months, and 20 days of active service that was characterized as under other than honorable conditions.  He had 333 days of lost time.

16.  ABCMR Docket Number AR20090016953, dated 9 March 2010, submitted by the applicant denied his request for a change of his reentry eligibility code.

17.  On 10 December 2010, the ADRB reviewed and denied the applicant's request for an upgrade.  The ADRB determined the applicant's discharge was proper and equitable and the discharge was properly characterized as under other than honorable conditions.

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

	a.  Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and AWOL.  Paragraph 14-12c provides for the separation of a Soldier by reason of commission of a serious offense.  The issuance of a discharge under other than honorable conditions is normally considered appropriate for separations under the provisions of chapter 14.

	b.  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.  He was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would have jeopardized his rights.

2.  His service in Iraq and awards of the Army Commendation Medal and Combat Action Badge were noted.  However, they are insufficient to mitigate his period of AWOL for a total of 152 days ending only because he was apprehended by civil authorities.



3.  The fact that he was apprehended by civilian authorities after 152 days of AWOL raises doubt as to his intent to return to military jurisdiction of his own volition.  Therefore, his service is considered unsatisfactory and there is no basis upon which to upgrade discharge his under other than honorable conditions.

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)                                         AR20130005568



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ABCMR Record of Proceedings (cont)                                         AR20130005568



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