IN THE CASE OF:  	  

		BOARD DATE:  30 September 2014	  

		DOCKET NUMBER:  AR20140002380 


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 under other than honorable conditions discharge to a general discharge. 

2.  The applicant states he has resolved the issues that prevented him from fulfilling his duties as a Soldier.  He has made great strides to improve his life and future.  He is now employed full-time and he works for the police department.  

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Letter from the Ohio Peace Officer Training Academy
* Certificate of Achievement - Emergency Management Institute
* Certificate of Completion of the Peace Officer Basic Training Program
* Certificate of Completion of an Alcohol Addiction, Apprehension, and Prosecution course
* Certificate of Training, Ohio Basic Police Academy
* Certificate of Achievement - Corrections Academy
* Certificate of Achievement - Emergency Management Institute
* Three letters of support/character reference letters

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.  The applicant's records show he enlisted in the Regular Army for 3 years on 22 July 2003.  He was subsequently assigned to Aberdeen Proving Ground, MD, for training.  

3.  On 2 August 2003, the applicant departed his basic training unit in an absent without leave (AWOL) status and was subsequently dropped from the rolls of the Army on 2 September 2003.  He was apprehended by civil authorities in Ohio and returned to military control on 26 February 2004. 

4.  On 8 March 2004, court-martial charges were preferred against the applicant for one specification of being AWOL from on or about 2 August 2003 to on or about 26 February 2004. 

5.  On 8 March 2004, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), of the possible effects of an under other than honorable conditions discharge if the request was approved, 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 (Personnel Separations – Enlisted Personnel).

6.  In his request for discharge, the applicant indicated 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 discharge or a dishonorable discharge.  He further 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 Department of Veterans Affairs, and that he could be deprived of her rights and benefits as a veteran under both Federal and State law.  

7.  On 9 March 2004, the applicant’s immediate commander recommended approval of the applicant’s request for discharge and remarked that his conduct had rendered him triable by a court-martial under circumstances which could 
have led to a bad conduct or a dishonorable discharge.  Based on his record, punishment was expected to have had a minimal rehabilitative efforts and a discharge was in the best interests of all concerned.  He further recommended an under other than honorable conditions character of service.

8.  On 11 March 2004, the separation authority approved the applicant's request for discharge and directed that he receive an under other than honorable conditions discharge and be reduced to the lowest enlisted grade, if applicable.  Accordingly, the applicant was discharged on 17 March 2004.  The DD Form 214 he was issued shows he was discharged under other than honorable conditions in accordance with chapter 10 of Army Regulation 635-200, in lieu of trial by court-martial.  This form also shows that he completed 28 days of creditable active military service and had lost time from 2 August 2003 to 25 February 2004. 

9.  On 26 October 2007, the Army Discharge Review Board (ADRB) reviewed the characterization of his service but found it proper and equitable.  As such, the ADRB denied his petition for a change to the characterization of his service. 

10.  The applicant submitted:

	a.  Multiple certificates of training, achievement, and/or commendation from various academies or police departments in the state of Ohio.

	b.  Multiple character reference letters and/or letters of support from various individuals acknowledging that he made a mistake but deserves a second chance.  The authors agree he is now a changed person.

11.  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 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.

	b.  Paragraph 3-7b provides that 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.  The applicant’s records shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges 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.

2.  Service in the Army is a privilege, not a right.  The applicant enlisted in the Regular Army on 22 July 2003.  The evidence of record shows, 11 days later, he departed in an AWOL status and 30 days later, he was a deserter.  His desertion was only terminated by civilian apprehension.  

3.  Based on this record of indiscipline, his 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 a general discharge. 

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)                                         AR20140002380





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ABCMR Record of Proceedings (cont)                                         AR20140002380



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