IN THE CASE OF:	  

		BOARD DATE:	  20 March 2014

		DOCKET NUMBER:  AR20130013044 


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:

* correction of the characterization of service on his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 10 November 1999 to show "honorable" instead of "uncharacterized" service
* upgrade of his under other than honorable conditions discharge

2.  The applicant states, in effect, he was honorably released from active duty following basic training and advanced individual training; however, his DD Form 214 for the period ending 10 November 1999 reflects a dishonorable (i.e. not honorable) character of service.

3.  He further states he knows he was wrong at the time and has accepted full responsibility for his actions since that incident that led to his under other than honorable conditions discharge.  He states he has not been in any trouble since and has learned from his mistakes.  He adds that during his service he saw one of his friends killed in a training accident and a second friend committed suicide.  He states he felt he could deal with it but he was unable to do so.  He now requests an upgrade of his under other than honorable conditions discharge so he can receive Department of Veterans Affairs (VA) medical care to deal with this situation.

4.  The applicant provides no additional documentary 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.  His record shows he enlisted in the Army National Guard (ARNG) on 23 December 1997.  A DD Form 214 for the period 21 September 1999 to 10 November 1999 shows he was released from active duty for training for the purpose of attending military occupational specialty 88M (Motor Transport Operator) advanced individual training and transferred to his ARNG unit after completing 1 month and 20 days of active service during this period.

   a.  This DD Form 214 further shows he was released from active duty for training under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 4, due to completion of required active service with an uncharacterized character of service. 

	b.  This DD Form 214 also shows he completed 2 months and 7 days of prior active service, taken to be his basic combat training.  His record does not contain a DD Form 214 for that earlier period of active service.

3.  On 21 December 1999, he enlisted in the Regular Army (RA) in the rank of private first class (PFC)/E-3.  He did not advance in rank during his RA service.

4.  On 30 October 2000, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for failing on five occasions to go at the time prescribed to his appointed place of duty.

5.  On 18 April 2001, he accepted NJP under the provisions of Article 15, UCMJ for:

* failing on two occasions to go at the time prescribed to his appointed place of duty
* knowingly making a false official statement
6.  On 13 July 2001, the suspended portion of his 18 April 2001 NJP was vacated due to him willfully disobeying a lawful order. 

7.  A DD Form 458 (Charge Sheet) shows that on 2 July 2001 court-martial charges were preferred against the applicant for:

* conspiring with Private SRN to commit larceny of a DVD player and a 
27-inch television, both of a value in excess of $100, the property of PFC DAC or Lease To Own, Inc.
* being derelict in the performance of charge of quarters runner duties in that he willfully failed to protect the property of PFC DAC or Lease To Own, Inc., from being stolen, as it was his duty to do
* stealing a DVD player and 27-inch television, both of a value in excess of $100 the property of PFC DAC or Lease To Own, Inc.

8.  On 7 August 2001, a court-martial charge was preferred against the applicant for being absent without leave (AWOL) from 3 July 2001 to 1 August 2001.

9.  On 3 December 2001, having consulted with legal counsel, he was advised of the basis for his contemplated trial by court-martial and the maximum possible punishment under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights available to him.

10.  After consulting with counsel, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

	a.  He indicated he understood he could request discharge for the good of the service because charges had been preferred against him under the UCMJ that authorized the imposition of a bad conduct or dishonorable discharge.

	b.  He stated he was making the request of his own free will, he had not been subjected to any coercion whatsoever by any person, and he had been advised of the implications attached to his request.

	c.  He acknowledged that by submitting a request for discharge he was acknowledging he was guilty of the charge against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.

	d.  He stated he did not desire further rehabilitation because he had no desire to perform further military service.

	e.  He acknowledged he understood that, if his request for discharge was accepted, he could be furnished an under other than honorable conditions discharge.  He acknowledged he had been advised of and understood the possible effects of an under other than honorable conditions discharge and that, as the result of the issuance of such a discharge he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.

	f.  He waived his rights.  He elected not to provide a statement in his own behalf.

11.  On 9 January 2002, the separation authority approved his request to be discharged under the provisions of Army Regulation 635-200, chapter 10.  He directed that the applicant be given an under other than honorable conditions discharge and reduced in rank to the lowest enlisted rank/grade.

12.  On 4 February 2002, he was discharged under the provisions of Army Regulation 635-200, chapter 10, in accordance with the separation authority's decision with an under other than honorable conditions discharge.  He completed 1 year, 10 months, and 14 days of creditable active service.

13.  On 2 August 2012, the Army Discharge Review Board denied the applicant's request to upgrade his under other than honorable conditions discharge.

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

	a.  Chapter 10 of that regulation provides, in pertinent part, 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, a discharge under other than honorable conditions is normally considered appropriate.

	b.  Paragraph 3-7a states 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.

	c.  Paragraph 3-7b states 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.

15.  Paragraph 4-2h of Army Regulation 635-200, in effect at the time, provided that Army National Guard of the United States (ARNGUS) Soldiers who successfully completed a period of initial active duty for training (IADT) to which ordered would be separated under the authority of chapter 4 of this regulation.  It further provided that the characterization of service of Soldiers separated under this chapter who were in an entry-level status would be uncharacterized, even though they completed their IADT successfully.

16.  Army Regulation 635-200 stated that for ARNG and U.S. Army Reserve Soldiers, entry level status begins upon enlistment in the ARNG.  It terminates for Soldiers ordered to IADT for one continuous period 180 days after beginning training, or no more than 90 days of Phase II under a split or alternate training option.

DISCUSSION AND CONCLUSIONS:

1.  Regulatory policy in effect at the time provided that ARNG Soldiers in an entry-level status would be given an uncharacterized character of service even though they completed their IADT successfully.  The evidence indicates that when he successfully completed IADT he was in an entry level status.  An uncharacterized discharge is not meant to be a negative reflection of a Soldier’s military service.  It merely means that the Soldier had not been in the Army long enough for his or her character of service to be rated as honorable or otherwise.
As such, there is no basis to change the characterization of service on his DD Form 214 for the period ending 10 November 1999.

2.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.  


3.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  He received NJP on two occasions for multiple offenses.  He was charged with conspiracy to commit larceny, stealing, dereliction in the performance of his duties, and being AWOL.  These offenses could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.

4.  This serious misconduct warranted his under other than honorable conditions discharge.  Both his character of service and the reason for his discharge were appropriate considering the facts of the case.  Therefore, there is an insufficient evidentiary basis for granting the applicant an honorable or a general discharge.

5.  In view of the foregoing, there is an insufficient basis for granting the applicant's request.

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)                                         AR20130013044



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ABCMR Record of Proceedings (cont)                                         AR20130013044



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