IN THE CASE OF:  	  

		BOARD DATE:  9 July 2015  	  

		DOCKET NUMBER:  AR20140020232


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 a change in his discharge characterization, from  under other than honorable conditions (UOTHC) to entry level status (uncharacterized).

2.  The applicant states that due to his short time in the service he requests an entry level separation.  He was still in the reception battalion when he went absent without leave (AWOL), in peace time conditions, and he doesn't feel he deserves an UOTHC discharge.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 enlisted in the Regular Army on 23 July 1997.  He was ordered to active duty at Fort Benning, Georgia, for the purpose of completing his military training.  Records show he did not complete training and was not awarded a military occupational specialty.  The highest rank/grade he attained while serving on active duty was private (PV1)/E1.

3.  He was reported AWOL on 10 August 1997.  He was dropped from the rolls of the Army on 9 September 1997.  He surrendered to military authorities at Fort Knox, Kentucky on 3 November 1997.

4.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows he was AWOL from 10 August 1997 to 2 November 1997. 

5.  Court-martial charges were preferred against him on 5 November 1997 for the AWOL offense.

6.   He consulted with legal counsel on 5 November 1997.  Subsequent to that legal consultation, he voluntarily requested discharge of the good of the service in lieu of trail by court-martial, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, based on charges that were preferred against him under the Uniform Code of Military Justice (UCMJ) that authorized the imposition of a bad conduct or dishonorable discharge.

7.  He acknowledged he understood the elements of the offenses charged and that he was guilty of at least one of the charges against him or of lesser-included offenses which also authorized the imposition of a bad conduct or dishonorable discharged.  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

8.  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 under other than honorable conditions discharge.
9.  He elected to make a statement on his own behalf.  His statement to the separation authority requested he be granted an entry level separation since he had less than six months in the Army.

10.  The Commander, U.S. Army Personnel Control Facility, Fort Knox, Kentucky, recommended approval of his request on 20 January 1998, for separation  in accordance with Army Regulation 635-200, chapter 10.  He stated that based on the applicant's record, punishment could be expected to have minimal rehabilitative effect and that discharge at the time would be in the best interest of all concerned.  He recommended an under other than honorable conditions discharge. 

11.  The separation authority approved his request for discharge on 6 February 1998 and directed the issuance of an Under Other than Honorable Conditions Discharge Certificate.  The applicant was discharged accordingly on 6 March 1998.  His DD Form 214 shows he completed 4 months, and 19 days of net active service and had 85 days of lost time during his period of service.

12.  There is no indication that he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

13.  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 3-7a 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 3-9a(1), states a separation will be described as an entry-level separation with service uncharacterized if processing is initiated while a Soldier is in an entry-level status (the first 180 days of continuous active duty), except when an under other than honorable conditions characterization is authorized under the reason for separation and is warranted by the circumstances of the case (emphasis added).

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for a change in his discharge characterization, from under other than honorable conditions to entry level status (uncharacterized), was carefully considered; however there is insufficient evidence to support his request.

2.  The available evidence shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  The records show that after consulting with legal counsel, he voluntarily requested discharge from the Army under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  By requesting discharge, he admitted he was guilty of the charge.

3.  The available evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  His discharge accurately reflects his overall record of service.

4.  Soldiers separated while in an entry level status receive an uncharacterized separation, except when an UOTHC characterization is authorized under the reason for separation.  The applicant was charged with AWOL, a court-martial offense for which he admitted guilt, which could have resulted in a punitive discharge.  Therefore, based on the seriousness of his offense and his voluntarily request to be discharged, his UOTHC discharge characterization was warranted and a change in his characterization, to uncharacterized, is neither appropriate nor 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)                                         AR20140007075



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ABCMR Record of Proceedings (cont)                                         AR20140020232



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