BOARD DATE: 16 December 2014
DOCKET NUMBER: AR20140008039
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 discharge under other than honorable conditions to general under honorable conditions.
2. The applicant states he was retained in the service under the stop-loss policy in October 2008.
3. The applicant provides no additional evidence.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 10 March 1999. He reenlisted on 6 September 2001 for a period of 2 years and on 9 October 2002 for a period of 6 years.
2. He was absent without leave (AWOL) on 5 November 2008 and remained AWOL until he surrendered to military authorities on 29 November 2010.
3. On 21 January 2011, court-martial charges were preferred against him for the AWOL offense.
4. On 1 February 2011, he consulted with legal counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 10, due to charges preferred against him under the Uniform Code of Military Justice (UCMJ) that authorized the imposition of a bad conduct or dishonorable discharge.
5. He acknowledged in his request that he understood the elements of the offenses charged and that he was guilty of at least the specification of the charge against him or of the lesser-included offense which also authorized the imposition of a bad conduct or dishonorable discharge. He was advised of:
* the nature of his rights under the UCMJ
* the elements of the offense with which he was charged
* any relevant lesser-included offense and the facts which must be established by competent evidence beyond reasonable doubt to sustain a finding of guilty
* the possible defenses which appear to be available
* the maximum permissible punishment if found guilty
6. He also acknowledged he could be issued a discharge under other than honorable conditions and he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, he could be deprived of many or all Army benefits, and he could be ineligible for many or all benefits as a veteran under both Federal and State laws. He further acknowledged he could expect to encounter substantial prejudice in civilian life by reason of a discharge under other than honorable conditions.
7. On 10 February 2011, the separation authority approved his request for discharge with his service characterized as under other than honorable conditions.
8. On 3 March 2011, he was discharged accordingly. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 9 years and 11 months of active duty service and he accrued 753 days of lost time.
9. The Army Discharge Review Board denied his request for an upgrade of his discharge on 4 April 2012.
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. 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.
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 request for an upgrade of his discharge under other than honorable conditions was carefully considered.
2. The available evidence shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. The record shows that after consulting with legal counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial. By requesting discharge, he admitted he was guilty of the charge.
3. His voluntary request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was administratively correct and in conformance with applicable laws and regulations. There is no indication the request was made under coercion or duress.
4. His record of indiscipline includes 753 days of lost time. Based on the seriousness of his offense and in view of the fact that he voluntarily requested to be discharged in order to avoid a trial by court-martial that could have resulted in a punitive discharge, his overall record of service did not support the issuance of a general discharge by the separation authority at the time and it does not support an upgrade of his discharge now.
5. In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's request.
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 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) AR20140008039
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