IN THE CASE OF:    

		BOARD DATE:  14 October 2014	  

		DOCKET NUMBER:  AR20140004171 


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 his general, under honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states:

	a.  After he graduated college he wanted to pay off his student loans in a timely fashion.  He joined the military and signed up for the loan repayment program.  He was never told about the officer program or given a choice between the two.  He was just another number to his recruiters but he still served to the best of his abilities.  He never showed up late for formation, went above and beyond in every activity, never failed a physical training test, and never had a negative counseling, before or after he went absent without leave (AWOL).

	b.  When he found out his father had cancer, he put in a separation packet showing he was financially able to take care of himself without military control.  He provided documents including bank statements and letters from his lawyer.  His request for a voluntary discharge was approved but he never received the paperwork.  He was told he had to submit a new packet so he let his mother know and wrote to his Congresswoman.  At that time, he wanted to get a hardship discharge due to the fact that he was mistreated and discriminated against because he owned his own company.  His command responded to his Congresswoman that he wouldn't be able to get a hardship discharge.  

	c.  During the following months, he received a Red Cross message stating his father had stage 4 cancer and only had a few months to live.  He requested emergency leave but his packet never left the platoon office.  His father was the main provider for his family and his mother had no other way of paying her bills.  At that time, he met with the chaplain and counselors.  He had a new first sergeant (1SG) who wasn’t aware of his situation.  His 1SG denied his leave so he took it upon himself to go AWOL to take care of his family.

	d.  He returned to his command of his own free will.  He showed proof that he had paid the bills for his family and updated his command on his status while he was AWOL.  His company commander was very understanding and received a copy of the first separation packet that went missing.  His commander did his best to get him out on his previous discharge but was told it was impossible.  The commander told him the only way he would be able to help his family was if he was put out on a company level discharge and not go above the company.

	e.  He loved the military and was great at his job.  He was proud to serve and he is a proud veteran.  He thinks he deserves an honorable discharge due to the fact that he was an outstanding troop.  He went AWOL because his father was dying and his family needed help.  He took the proper steps in meeting with the chaplain but everyone told him it wasn't likely that he could take emergency leave because his 1SG said no.  Then he was told the commander was the only one who could deny his leave but his packet never left the platoon office.

3.  The applicant provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a Red Cross Message
* six certificates, dated between 11 February 2010 and 29 February 2012
* seven pages of Army Training Support Center Examination Results, dated between 11 March and 10 June 2010
* a letter to his 1SG from a Mr. BMR, dated 12 November 2010

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 13 August 2009 for a period of 4 years and he held military occupational specialty 12W (Carpentry and Masonry Specialist).  On 4 August 2010, he was assigned to the 93rd Engineer Company, 46th Engineer Battalion, Fort Polk, LA.  

2.  He provides a letter to his 1SG, dated 12 November 2010, wherein Mr. BMR stated, in part, he was an entertainment lawyer and had represented the applicant for several years.  He knew him as a record producer, musician, and songwriter of great renown.  He further stated creative people had different sleep and work schedules then ordinary folk and felt driven to create whenever inspiration hit them.  In his opinion, this lifestyle was not a good fit with the regimented and organized schedules of military personnel.  It wasn't unexpected when the applicant told him of his unhappiness with Army life.  His unhappiness with his inability to create music, combined with the illness of his father, caused him a great amount of stress and worry.  He fully supported his request for a discharge because his lifestyle was unsuitable for long-term service.

3.  The applicant provides Red Cross Message to his command, dated 8 June 2011, wherein it stated tests revealed the worsening condition of his father's cancer in the lung; it was stage 4, and he had emphysema, hypertension, and hardening of the arteries.  His condition was stable and his life expectancy was 6 to 9 months.  The doctor recommended the applicant's presence.  His mother stated he was aware of his father's illness but not his worsening condition.

4.  On 27 June 2011, the applicant was reported as AWOL from his assigned unit and on 28 July 2011, he was dropped from the rolls (DFR) as a deserter.

5.  On 4 February 2012, he returned to military control and his assigned unit.

6.  His record contains a letter in response to a Congressional Inquiry, dated 12 March 2012, wherein his immediate commander stated:

	a.  The applicant had requested voluntary separation on 23 February 2011.  His packet was approved at installation level on 2 May 2011 and forwarded to the Office of the Secretary of the Army through the U.S. Army Forces Command (FORSCOM).  The legal office at FORSCOM sent the packet back until the applicant could complete the Army Career and Alumni Program (ACAP), a Congressionally-mandated requirement.

	b.  The applicant's former chain of command informed the applicant of the required classes after the packet was returned but he went AWOL on 27 June 2011 and processing of his separation packet ceased.  He was currently facing adverse action for going AWOL and until those charges were resolved, he was ineligible for non-judicial separation actions.

7.  On 1 May 2012, his immediate commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, for the commission of a serious offense - being AWOL from 27 June 2011 to 3 February 2012.  The commander stated he was recommending he receive a general discharge.

8.  On 1 May 2012, he acknowledged receipt of the commander's notification.  On 2 May 2012, he consulted with legal counsel and he was advised of the basis for the contemplated separation action for commission of a serious offense drugs, the type of discharge he could receive, its effect on further enlistment or reenlistment, the possible effects of this discharge, and the procedures and rights available to him.  He declined to submit a statement on his own behalf.

9.  On 15 May 2012, the separation authority approved his discharge under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct with a general discharge.  On 18 May 2012, he was discharged accordingly.

10.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct (AWOL), with an under honorable conditions (general) characterization of service.  He completed 2 years, 1 month, and 29 days of net active service and had 22 days (7 months and 12 days) of lost time due to being AWOL.

11.  On 5 April 2013, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge and determined he was both properly and equitably discharge.  

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and abuse of illegal drugs.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter (emphasis added).  

13.  Army Regulation 635-200, 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant's unit had approved his request for voluntary separation but the packet was returned as he had not completed the required ACAP classes.  However, instead of completing the classes, he went AWOL and was subsequently DFR as a deserter.  He returned to his assigned unit after being AWOL for almost 8 months.  Accordingly, his immediate commander initiated separation action against him for the commission of a serious offense.

2.  His separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for discharge were appropriate considering all the facts of the case.

3.  It appears the approving authority took the applicant's complete record into consideration when he directed the applicant be given a general discharge.

4.  Based on his record of misconduct, his conduct did not meet the standards of acceptable conduct of duty for Army personnel.  Therefore, he is not entitled to an honorable 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)                                         AR20140004171





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140004171



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1