BOARD DATE:	  7 August 2014

		DOCKET NUMBER:  AR20130021436 


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 (UOTHC) discharge to a general discharge.

2.  The applicant states his staff sergeant knew he left base because his car was totaled, but the staff sergeant informed his lieutenant that he had no clue where the applicant was located.  He finally realized what it means to serve his country and he would like to rejoin the military.

3.  The applicant provides no additional documentary evidence.

CONSIDERATION OF EVIDENCE:

1.  On 14 November 2002, the applicant enlisted in the Regular Army.  He completed training and was awarded military occupational specialty 92G (Food Services Specialist).  The highest rank he held was private two/pay grade E-2.

2.  A DA Form 5112-R (Checklist for Pretrial Confinement) shows that on 
12 June 2003 he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 2-5 June 2003.

3.  A DD Form 458 (Charge Sheet) shows that on 12 September 2003 court-martial charges were preferred against the applicant for:

* being AWOL from 24 June-13 July 2003, 11-14 August 2003, 
15-19 August 2003, and 20 August-11 September 2003
* breaking restriction on 24 June 2003 and 15 August 2003

4.  On 12 September 2003, his commander informed him in writing that he was placing the applicant in pretrial confinement because he was suspected of the following offenses:  AWOL on four different occasions, breaking restriction, disobeying a lawful order from a superior commissioned officer, and failure to repair.  His commander informed him of his rights.

5.  On 17 September 2003, 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 a UOTHC discharge, and of the procedures and rights available to him.

6.  After consulting with counsel, he voluntarily requested dischargeunder the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10. fpr th 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, one of which or a combination of which 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 a UOTHC discharge.  He acknowledged he had been advised of and understood the possible effects of a UOTHC 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 a UOTHC discharge.

	f.  He waived his rights.  He indicated he would not provide a statement in his own behalf.

7.  Though he indicated he did not intend to provide a statement in his own behalf, he provided a written statement to the separation authority, dated 30 September 2003.  Therein, he stated he came into the Army trying to better his life.  He stated that his brother died as a result of drugs and alcohol 2 weeks prior to the applicant shipping to active duty.  He told his superiors at basic training, advanced individual training, and thereafter that he didn’t want to be in the military.  He then learned that his girlfriend was pregnant and he didn't know who to turn to.   He asked the separation authority to grant him a discharge under the provisions of Army Regulation 635-200, chapter 10, so when he got out he would be able to go home and get a job with his father and marry his girlfriend so the baby could have a father and mother.

8.  On 14 October 2003, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10.  He directed that the applicant be given a UOTHC discharge and reduced in rank to the lowest enlisted rank/grade.

9.  On 31 October 2003, he was discharged under the provisions of Army Regulation 635-200, chapter 10, in accordance with the separation authority's decision with a UOTHC discharge.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 9 months and 28 days of creditable active service with time lost during the periods: 24 June-12 July 2003, 11-13 August 2003, 15-18 August 2003, and 20 August-11 September 2003.

10.  On 15 December 2011, the Army Discharge Review Board denied the applicant's request to upgrade his UOTHC discharge.

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

	a.  Chapter 10 of that regulation 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 UOTHC is normally considered appropriate.
	b.  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.

	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.

DISCUSSION AND CONCLUSIONS:

1.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  His records show he received NJP for being AWOL.  He was charged with four specifications of being AWOL, offenses for which he 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 his discharge process.

2.  His records show he was well advised and fully aware of the consequences of his decision to request discharge in lieu of trial by court-martial.  Further, there is no evidence of mitigating circumstances related to his indiscipline that would warrant changing the characterization of his service.

3.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible to reenter the military.  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.

4.  Based on his periods of AWOL and breaking restriction, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Both his character of service and the reason for his discharge were appropriate considering the facts of the case.  Therefore, there is an insufficient basis upon which to grant 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)                                         AR20130021436



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130021436



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1