BOARD DATE:	  24 April 2014

		DOCKET NUMBER:  AR20130014635 


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:

* upgrade of his under other than honorable conditions discharge
* restoration of rank/grade to specialist (SPC)/E-4
* correction of the total active service he completed from "0002-04-09" to "0003-04-00"

2.  The applicant states:

* he was injured and was unable to fly for 30 days; his commander failed to report him in an absent without leave (AWOL) status
* he turned himself in to take care of the matter like he was told, and he was released because he was never reported AWOL
* his father had four stints put in and his mother committed suicide 2 years ago due to depression, and his grandfather was a sniper in Vietnam
* the Board should check from the day he went on leave after deployment, how many days it took his unit to report him AWOL
* the AWOL was not his fault; it was his unit's fault; his first sergeant kept saying he (the applicant) was AWOL when he wasn't
* he loves his country and he went to battle for his country; he wants the Board to give him what he rightfully deserves 
* he has applied for service-connected disability with the Department of Veterans Affairs (VA) for post-traumatic stress disorder (PTSD) and traumatic brain injury (TBI)
* he and his family are experiencing severe financial hardships and he is unable to even pay some of his bills
* he has a wife and three kids and they live on social security benefits which is insufficient to lead a decent life
* his aunt worked for Former President Clinton and he even sat in his chair and has had a picture with him 
* his doctor put him on a 30-day no flight but the doctor has since shut down and if the Board needs any records, the Board should tell him
* he had sustained an injury to his feet and right knee and was told by his doctor not to fly; he also received extended leave

3.  The applicant provides:

* selected VA progress notes
* letter of support
* post-discharge TBI Evaluation Consult Sheet  

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army on 12 March 2003 and he held military occupational specialty 88M (Motor Transport Operator).  

2.  He served in Kitzingen, Germany, with B Company, 701st Combat Support Battalion, from on or about 4 August 2003 to an unknown date.  He was promoted to SPC/E-4 on 12 March 2005.

3.  He was awarded or authorized the National Defense Service Medal, Global War on Terrorism Service Medal, Global War on Terrorism Expeditionary Medal, and Army Service Ribbon. 

3.  On 19 April 2005, he departed his unit in an AWOL status and on 18 May 2005, he was dropped from the Army rolls as a deserter.  He surrendered to military control on 12 September 2006.  He was attached to the Personnel Control Facility, Fort Sill, OK for administrative processing. 

4.  Upon the applicant's return to military control, his commander interviewed him.  The applicant stated he was injured and he could not get enough money for a flight back to Germany.  

5.  On 16 September 2006, his command preferred court-martial charges against him for one specification of AWOL from 19 April 2005 to 12 September 2006. 

6.  On 16 September 2006, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Enlisted Personnel Separations).  In his request for discharge, the applicant indicated that:

* he understood he was being charged with violating multiple Articles of the UCMJ and he fully understood the elements of the offenses
* he was making this request of his own free will and had not been coerced by any person whatsoever
* he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or a dishonorable discharge
* he acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA
* he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State law
* he elected not to submit a statement on his own behalf and declined a physical evaluation prior to separation

7.  His immediate and intermediate commanders recommended approval of his discharge action with the issuance of an under other than honorable conditions characterization of service. 

8.  On 2 November 2006, subsequent to a legal review for legal sufficiency and consistent with the chain of command recommendations, the separation authority approved the applicant’s request for voluntary discharge and directed that he be given an under other than honorable conditions discharge and be reduced to the lowest enlisted grade.  On 14 December 2006, the applicant was discharged accordingly.  

9.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of court-martial with an under other than honorable conditions characterization of service.  His DD Form 214 also shows in:


* Item 4a (Grade, Rate or Rank) and 4b (Pay Grade) - PV1 and E-1 
* Item 12a (Date Entered Active Duty This Period) - 2003-03-12
* Item 12b (Separation Date This Period) - 2006-12-14
* Item 12c (Net Active Service This Period) -0002-04-09
* Item 12h (Effective Date of Pay Grade) - 2006-11-02
* Item 29 (Dates of Time Lost During This Period) - Under Title 10, U.S. Code, section 972, 20050419 to 20060912

10.  On 13 July 2012, the Army Discharge Review Board (ADRB) reviewed his discharge and determined it was both proper and equitable.  The ADRB unanimously voted to deny his request for an upgrade. 

11.  He provides: 

	a.  Post-discharge TBI Evaluation Consult Result, dated 19 August 2013, conducted or furnished by a VA provider. 

	b.  VA progress notes, dated 21 June 2013. 

	c.  A letter of support, dated 5 December 2013, from an individual who believes the applicant deserves an upgrade because he deployed and he was a good Soldier during the deployment. 

12.  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 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.

	a.  Paragraph 1-14 of the regulation in effect at the time stated that when a member was to be discharged under other than honorable conditions, the convening authority would direct an immediate reduction to the lowest enlisted grade.

	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.  

13.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty and provides the individual with documentary evidence of their military service.  It is important that information entered on the form should be complete and accurate.  Item 29 shows time lost under Title 10, U.S. Code, section 972.  The regulation requires that the dates of time lost during the current enlistment will be entered on the DD Form 214.  For enlisted personnel, the inclusive periods of time lost to be made good under Title 10, U.S. Code, section 972, and periods of non-inclusive time after expiration of term of service (ETS) will be entered.  Time lost under Title 10, U.S. Code, section 972, is not creditable service for pay, retirement, or veterans' benefits; however the Army preserves a record of it (even after it has been made up) to explain which service between the date of entry on active duty and the date of separation is creditable service.

DISCUSSION AND CONCLUSIONS:

1.  With respect to the discharge upgrade: 

	a.  The applicant’s records show he was charged with the commission of offense punishable under the UCMJ with a punitive discharge.  Discharge actions processed under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service. 

	b.  The available evidence clearly shows he elected to go AWOL and for an extended period of time (512 days).   Additionally, upon preferring court-martial charges against him, he exercised his right to consult with counsel.  His options were to face the court-martial that could have adjudged a dishonorable or a bad conduct discharge or submit a voluntary request for discharge.  He voluntarily chose the discharge.  Those were choices that he made. 

	c.  The applicant refers to his unit first sergeant, unit commander, deployment, knee injury, love of country, current VA diagnosis, and family situation, in an attempt to justify his desertion.  However, none of this changes the fact that he was AWOL and a deserter.  He was discharged because he chose to go AWOL and when he was returned to military control he chose to be discharged.  He could have elected a court-martial if he felt any of the issue he now raises caused his extensive history of AWOL. 

	d.  Based on his history of indiscipline and misconduct, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge to either general or honorable. 

2.  With respect to the rank/grade of SPC/E-4, when the separation authority approved the applicant's voluntary discharge in lieu of trial by court-martial, as required by regulatory guidance, he also ordered the applicant's reduction to the lowest enlisted grade as required by regulation.  This rank/grade and effective date of pay grade are correctly shown on the applicant's DD Form 214 and there is no reason to change any of these entries. 

3.  With respect to the total period of active service he served: 

	a.  He entered active duty on 12 March 2003 and he was discharged on 14 December 2006.  When subtracting item 12b from item 12c the result is 3 years, 9 months, and 3 days.  However, part of this period was lost time that was never made good.  He was AWOL/deserter from 19 April 2005 to 12 September 2006, a period of 1 year, 4 months, and 23 days.  When the lost time is subtracted from his total active service, the remainder is 2 years, 5 months, and 9 days which is correctly reflected in item 12c. 

	b.  By law and regulation, periods of AWOL, confinement, and desertion are considered lost time which is not creditable service for pay, retirement, or veterans' benefits.  The lost time is required to be listed on the DD Form 214 even if the periods of time lost were later made up.  Not only is there no evidence that he made up this lost time, even if he did so, the requirement to list the lost time on the DD Form 214 remains a valid requirement. 

4.  After a review of the applicant's records and in view of the foregoing, there is no basis for changing his dates of lost time.  He is not entitled to any of the requested relief.





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)                                         AR20130014635





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ABCMR Record of Proceedings (cont)                                         AR20130014635



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