IN THE CASE OF:  

		BOARD DATE:  12 November 2014	  

		DOCKET NUMBER:  AR20140007743 


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 to a general discharge.

2.  The applicant states, in effect, he:

* did not understand the long-term effect of accepting a chapter 10 discharge
* wanted to clear himself as a deserter
* was absent without leave (AWOL) due to family obligations
* requested a compassionate reassignment, but was denied
* was young and immature in his actions

3.  The applicant does not provide any additional 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.  The applicant's record shows he enlisted in the Regular Army on 6 June 1994, at the age of 20.  His records show he completed basic combat and advanced individual training and was awarded military occupational specialty 92A (Materiel Storage and Handling Specialist).  The highest rank/grade he attained while serving on active duty was specialist/E-4.

3.   On 7 April 1997, charges were preferred against the applicant for being AWOL for the period 11 October 1996 through 6 April 1997.

4.  On 10 April 1997, the applicant consulted with 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), the possible effects of an under other than honorable conditions discharge, and procedures and rights available to him.  Subsequent to receiving legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  He elected not to make a statement in his own behalf.

5.  In his request for discharge, the applicant indicated he understood that by requesting discharge he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

6.  On 9 June 1997, the separation authority approved the applicant’s request and directed he receive an under other than honorable conditions discharge and reduction to the lowest enlisted grade. 

7.  On 2 July 1997, the applicant was discharged accordingly.  He completed 2 years and 7 months of total creditable active military service with 177 days of lost time due to being AWOL.

8.  There is no evidence in the applicant's available personnel service record which shows he submitted a request for a compassionate reassignment or that he sought assistance from his chain of command for family issues.

9.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board’s 15-year statute of limitations.


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

	a.  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 at any time after the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate.

11.  Army Regulation 635-200, 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 was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.

2.  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 his rights were fully protected throughout the separation process.

3.  When presented with the court-martial charges and after consulting with counsel, he elected not to make a statement explaining his AWOL as he now does.

4.  The applicant contends that his discharge should be upgraded because he was young and not aware of what he was doing at the time of his service.

5.  Records show the applicant was 20 years of age at the time of his offenses.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

6.  Although the applicant alleges that he submitted a request for a compassionate reassignment, there is no evidence in his military records and the applicant has not provided sufficient evidence supporting this contention.  Therefore, this argument is not sufficient to support his request for an upgrade of his discharge.  

7.  His discharge was appropriate because the quality of his service during his enlistment was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel, and an upgrade of his discharge is not warranted.

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)                                         AR20140007743





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ABCMR Record of Proceedings (cont)                                         AR20140007743



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