IN THE CASE OF:	  

		BOARD DATE:  4 March 2014

		DOCKET NUMBER:  AR20130012254 


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 reconsideration of his previous request for an upgrade of his under other than honorable conditions discharge.

2.  As a secondary issue, the applicant requests correction of his                      DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 17 April 1997, to show he graduated one station unit training (OSUT) and was awarded a military occupational specialty (MOS).

3.  The applicant states:

   a. His problem started during basic training in 1995.  His girlfriend, who is the mother of his child, started calling his unit and saying he wasn’t sending her child support.  He had submitted allotment paperwork for her to receive child support payments in the amount of $200.00 per month.  It took a while for the Army to start sending her the money.  Meanwhile, she continued to call and complain that she didn’t have any money.  As a result, his drill sergeants yelled at him more and made him do extra duty, which lasted until graduation.  

   b. His girlfriend called him and asked him to get out of the Army and come home.  He went home and did everything he could to get her back.  He realized he made a big mistake and the Army would come looking for him because he was absent without leave (AWOL).  He was home for several months before the military police picked him up.  He was so confused at that point, so he accepted the discharge in order to get his girlfriend and child back.  
   c. It is now 15 years later and he has turned his life around.  He and his girlfriend did not get married; however, they have a good relationship and raised their daughter together.  He served honorably in the Army National Guard (ARNG) and U.S. Army Reserve (USAR).  

   d. He was just a confused young man when he joined the Army, in love with his girlfriend.  He is now a mature adult and knows that the character of his discharge hurts him from getting a good paying job.  He doesn’t want to be punished for the rest of his life for a youthful mistake.

   e. He recently had a DNA test performed to see if his daughter was his biological child.  The DNA test shows he is not the girl's father.  He hopes the court order absolving him of any child support requirements strengthens his request for an upgrade of his discharge.

   f. His discharge should be upgraded to an honorable discharge, or at least an under honorable conditions (general) discharge.  He has an honorable discharge from the ARNG and the USAR.  He completed his contract with the U.S. Army.  He would have liked to remain in the USAR; however, physical problems forced him to leave.  He regrets going AWOL.  He felt as though he was going crazy at the time, his girlfriend was in his head and he was messed up.  

4.  The applicant provides:

* laboratory results from Laboratory Corporation of America, identified as a "relationship report"
* a Notice of Court Action from the District Court of Colbert County, Alabama, dated 16 April 2013
* a Notice of Electronic Filing from the District Court of Colbert County, Alabama, dated 9 May 2013
* an extract of ABCMR Docket Number AR20120012725
* his DD Form 214
* DA Form 87 (Certificate of Training), showing he completed the MOS 19D (Armored Reconnaissance Specialist) course
* Orders 053-00033, issued by Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, KY on 22 February 1996
* a memorandum from the National Guard Bureau (NGB), dated 23 April 2004, subject: Request for Waiver, Separation Disqualification (In Lieu of Court-Martial), AWOL (248 days) and RE-Code (reentry code)
* DA Form 5286-R (Individual Basic Training (BT), Advanced Individual Training (AIT), One Station Unit Training (OSUT))
* DA Form 1059 (Service School Academic Evaluation Report), dated        24 September 2004
* DA Form 1059, dated 17 December 2004
* a diploma from the U.S. Army Ordnance Center and Schools, Regional Training Site – Maintenance, Fort Indiantown Gap, PA
* NGB Form 22 (Report of Separation and Record of Service)
* NGB Form 55a (Honorable Discharge Certificate – ARNG)
* a Certificate of Completion issued by the 5th Battalion, 4th Brigade, 100th Division, U.S. Army Reserve, dated 21 July 2008
* DA Form 1059, dated 21 July 2008
* a Certificate of Completion issued by the 5th Battalion, 4th Brigade, 100th Division, U.S. Army Reserve, dated 1 August 2008
* DA Form 1059, dated 2 August 2008
* Orders 11-326-00122, issued by Headquarters, 81st Regional Support Command, Fort Jackson, SC on 22 November 2011

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20120012725, dated 29 January 2013.  

2.  The applicant provides documents related to a paternity test he underwent in March 2013 and 2 separate court orders issued in April and May 2013, which absolve him of parental responsibility related to a minor child previously thought to be his daughter.  Additionally, he provides numerous other documents related to his service in the ARNG and USAR.  These documents constitute new evidence not previously considered by the Board; therefore, this new evidence warrants consideration.

3.  On 21 November 1995, the applicant enlisted in the Regular Army, 8 days shy of reaching age 24, and entered active duty at Fort Knox, KY.    

4.  His record contains a Certificate of Training that shows he completed the Armored Reconnaissance Specialist course conducted by the 1st Armor Training Brigade at Fort Knox, KY.

5.  Orders 053-00033, issued by Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, KY on 22 February 1996, awarded him MOS 19D effective 21 March 1996.  These same orders reassigned him to Headquarters and Headquarters Company, 1st Battalion (Airborne), 507th Infantry Regiment, Fort Benning, GA, effective 22 March 1996, for the purpose of completing his airborne training.  Upon arrival, he was assigned to Company C, 1st Battalion (Airborne), 507th Infantry Regiment.

6.  On 8 April 1996, his unit reported him as AWOL.  On 9 May 1996, he was dropped from the rolls of the Army.  On or about 2 August 1996, he was returned to military control and reassigned to the U.S. Army Special Processing Company, U.S. Army Personnel Control Facility (PCF), Fort Knox, KY.  He failed to comply with his reassignment instructions.

7.  On 6 August 1996, he was reported AWOL and dropped from the rolls of the Army.  He remained AWOL until he was returned to military control on                 8 December 1996.

8.  On 16 December 1996, a DD Form 458 (Charge Sheet) was prepared by the Commander, Special Processing Company, U.S. Army Personnel Control Facility, Fort Knox, KY, wherein the applicant was charged with two specifications of being AWOL, from on or about 8 April 1996 to on or about         2 August 1996 and from on or about 6 August 1996 to on or about 8 December 1996.

9.  On 16 December 1996, after consulting with counsel, he voluntarily requested discharge in lieu of trial by court-martial, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 10.  In his request for discharge, he acknowledged he understood the elements of the offense(s) charged, he was guilty of the charge(s) against him or of a lesser included offense therein which authorized the imposition of either a bad conduct or dishonorable discharge, each characterized as under other than honorable conditions.  

10.  On 24 February 1997, the separation authority approved the applicant’s request and directed his reduction to pay grade E-1 and the issuance of an under other than honorable conditions discharge.

11.  On 17 April 1997, he was discharged from the Army under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  His service was characterized as under other than honorable conditions.  He was credited with completing 8 months and 27 days of net active service with 240 days of time lost.  His DD Form 214 does not show his qualification in any MOS.

12.  On 21 June 2004, the applicant enlisted in the Alabama ARNG.  On           16 November 2006, he was honorably discharged and transferred to the USAR. On 22 November 2011, he was honorably discharged from the USAR.

13.  The applicant provides documents related to a paternity test he underwent in March 2013 and 2 separate court orders issued in April and May 2013, which absolve him of parental responsibility related to a minor child previously thought to be his daughter.  Additionally, he provides numerous other documents related to his service in the ARNG and USAR.  None of these documents are related to the circumstances surrounding his period of AWOL service and/or eventual discharge from the Regular Army.  

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  The regulation stated in:

   a. Chapter 10 that a member who had 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 include the individual's admission of guilt.  Although an honorable or general discharge is authorized, an under other than honorable conditions discharge was normally considered appropriate.
   
   b. Paragraph 3-7a that an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be inappropriate.

   c. Paragraph 3-7b that a general discharge was 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.  

15.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It states the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.  The version of this regulation in effect at the time specified that item 11 of the DD Form 214 was used to document the codes and titles of all MOSs held, regardless of the length of time in which the Soldier held them.  


DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of his DD Form 214, for the period ending 17 April 1997, to show he graduated OSUT, and was awarded an MOS was carefully considered.  

2.  The evidence of record shows he completed OSUT at Fort Knox, KY and was awarded MOS 19D.  This MOS is not noted on his DD Form 214; therefore, it would be appropriate to amend his DD Form 214 to show it.  However, his period of AWOL service began approximately 2 weeks after the effective date on which he was awarded the MOS; therefore, he cannot be credited with any time served in the MOS since he did not serve at least 30 days prior to his AWOL service.

3.  The applicant's request for an upgrade of his under other than honorable conditions discharge was carefully considered; however, there is insufficient evidence to support his request.

4.  The evidence of record shows he was charged with two specifications of being AWOL, for a period of time totaling 240 days.  On 16 December 1996, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  He acknowledged he could receive either a bad conduct or dishonorable discharge, each characterized as under other than honorable conditions.  

5.  He now provides documents related to a paternity test he underwent in March 2013 and 2 separate court orders issued in April and May 2013, which absolve him of parental responsibility related to a minor child previously thought to be his daughter.  Neither the paternity test nor the court orders explain or justify his AWOL service, nor do they counter his voluntary application for discharge in lieu of trial by court-martial.  Additionally, his post-Regular Army service documents, while noteworthy, are not relevant to his discharge characterization.

6.  He has provided no evidence or a convincing argument to show his discharge should be upgraded and he also has not provided evidence sufficient to mitigate the character of his discharge.  His military records contain no evidence which would entitle him to an upgrade of his discharge.  His misconduct diminished the quality of his service below that meriting a general or an honorable discharge.

7.  The evidence shows that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  It is believed that the reason for discharge and the characterization of service were both proper and equitable.  Therefore, he was properly discharged in accordance with pertinent regulations with due process.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ___X__ _  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that partial relief is warranted.

2.  With regard to the new issue, the Board determined the evidence presented is sufficient to warrant a portion of the requested relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending item 11 of his DD Form 214, for the period ending 17 April 1997, to add the entry "19D, Armored Reconnaissance Specialist, 0 YRS, 0 MOS."

3.  With regard to the applicant's request for reconsideration, the Board determined 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 to amend the decision of the ABCMR set forth in Docket Number AR20120012725, dated 29 January 2013.





      _______ _  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)                                         AR20120012725



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ABCMR Record of Proceedings (cont)                                         AR20130012254



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