RECORD OF PROCEEDINGS


      IN THE CASE OF:

      BOARD DATE:        28 June 2005
      DOCKET NUMBER:  AR20040006848


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. David S. Griffin              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Joe R. Schroeder              |     |Chairperson          |
|     |Mr. Lawrence Foster               |     |Member               |
|     |Ms. Jeanette R. McCants           |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that her discharge under other than
honorable conditions be upgraded to an honorable discharge.

2.  The applicant states, in effect, that her discharge was inequitable
because it was based on one isolated incident in an otherwise unblemished 9
1/2 year career.  She further states that since her discharge and prior to
the incident she has led a very productive life.

3.  The applicant provides:

      a.  four personal references, including one from her sister, that
attest to the applicant being of high moral character and that she is hard-
working, honest, and a very helpful person.  They also state that the
applicant is remorseful for her actions and that she is a honest and decent
person;

      b.  a copy of a Certificate of Award for making the President's List
at Orlando College in the summer of 1995;

      c.  a copy of three Academic Achievement Awards for maintaining a 4.0
grade point average as a full time student at Orlando College;

      d.  a copy of an Associate Degree in Science, Criminal Justice,
awarded by the Florida Metropolitan University, Melbourne, Florida on 10
January 1997;

      e.  a copy of a letter, dated 19 September 1996, from the American
Society for Industrial Security (ASIS) Space Coast Chapter #046 notifying
the applicant that she was selected as the recipient of the 1996 ASIS Space
Coast Chapter's Foundation Scholarship Award;

      f.  a copy of a newspaper article that reports the applicant's
receipt of the 1996 ASIS Space Coast Chapter's Foundation Scholarship
Award; and

      g.  a copy of a certificate, dated 23 July 2003, from the North
Central Florida Local Emergency Planning Committee that shows the applicant
completed
20 hours of Operations-Level Hazardous Materials Emergency Response
Training.
CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 5 October 1990, the date of her discharge.  The application
submitted in this case is dated 30 August 2004 and was received on 10
September 2004.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant's military records show that she initially enlisted on 20
January 1981 for a period of 3 years.  She successfully completed basic
combat and advanced individual training and was awarded the military
occupational specialty 95B10 (military police).  The applicant reenlisted
on 20 January 1984 for a period of 6 years and on 27 November 1989 for a
period of 3 years.  The highest grade the applicant held was staff
sergeant/pay grade E-6.

4.  On 19 September 1990, court-martial charges were preferred against the
applicant for four specifications of larceny of a value of $100 or less,
three specifications of larceny of a value of more than $100 and for
dishonorably failing to pay a just debt.

5.  On 21 September 1990, the charges were reviewed by a staff judge
advocate who determined that each specification alleged an offense under
the Uniformed Code of Military Justice (UCMJ), the allegations were
warranted by the evidence and there was court-martial jurisdiction over the
accused and the charged offenses.  The staff judge advocate recommended
that the applicant be tried by a special court-martial empowered to adjudge
a bad conduct discharge.

6.  On 24 September 1990, the applicant voluntarily requested discharge for
the good of the service.  She acknowledged that she was making the request
of her own free will and acknowledged that she was guilty of the offenses
with which she was charged.  She further acknowledged that she was afforded
the opportunity to speak with counsel prior to making this request.  In her
request, the applicant acknowledged that she was advised she may be
furnished an Under Other Than Honorable Conditions Discharge Certificate;
that she would be deprived of many or all Army benefits; that she may be
ineligible for many or all Veterans Administration benefits; and that she
may expect to encounter substantial prejudice in civilian life because of
an under other than honorable conditions discharge.

7.  On 28 September 1990, the appropriate authority approved the
applicant's request for discharge for the good of the service, directed
that the applicant be reduced to private/pay grade E-1, and that she be
discharged under other than honorable conditions.

8.  On 5 October 1990,  the applicant was discharged under the provisions
of Chapter 10 of Army Regulation 635-200, for the good of the service - in
lieu of court-martial.  She had completed 10 months and 08 days of active
service on this enlistment.  She had previously completed 9 years, 10
months and 6 days of honorable service.

9.  The applicant applied to the Army Discharge Review Board (ADRB) to
upgrade her discharge.  On 9 January 1997, the ADRB reviewed and denied the
applicant's request for upgrade.  The ADRB determined that the applicant's
discharge was proper and equitable and that the discharge was properly
characterized as under other than honorable conditions.

10.  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.  The U.S. Court of Appeals, observing
that applicants to the Army Discharge Review Board (ADRB) are by statute
allowed 15 years to apply there, and that this Board's exhaustion
requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens
that filing period, has determined that the
3-year limit on filing to the Army Board for Correction of Military Records
(ABCMR) should commence on the date of final action by the ADRB.  In
complying with this decision, the ABCMR has adopted the broader policy of
calculating the 3-year time limit from the date of exhaustion in any case
where a lower level administrative remedy is utilized.

11.  Army Regulation 635-200 (Active Duty Enlisted Administrative
Separations) sets forth the basic authority for the administrative
separation of enlisted personnel.  Chapter 10 of that regulation provides,
in pertinent part, that a member who has committed an offense or offenses
for which the authorized punishment includes a punitive discharge may at
any time after the charges have been preferred, submit a request for
discharge for the good of the service in lieu of trial by court-martial.  A
discharge under other than honorable conditions is normally considered
appropriate.



12.  Army Regulation 635-200 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 (emphasis added), or is otherwise so
meritorious that any other characterization would be clearly inappropriate.
 Whenever there is doubt, it is to be resolved in favor of the individual.

13.  Army Regulation 635-200 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.  A
characterization of under honorable conditions may be issued only when the
reason for the soldier’s separation specifically allows such
characterization.

14.  Under the provisions of The Manual for Courts-Martial, United States,
1984 edition, the maximum punishment that the applicant could have received
for her offenses is a bad conduct  discharge, 6 months confinement,
forfeiture of two-thirds pay and allowances for 6 months and reduction to
the lowest enlisted grade.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her discharge under other than honorable
conditions should be upgraded to an honorable discharge because it was
inequitable because it was based on one isolated incident in an otherwise
unblemished 9 1/2 year career.  She further contends that since her
discharge and prior to the incident she has led a very productive life.

2.  The evidence shows that the applicant was charged with committing
larceny on seven different occasions. The evidence further shows that she
had failed to pay a just debt.  Therefore, the evidence does not support
the applicant's contention of "one isolated incident."

3.  The applicant voluntarily requested discharge, admitted her guilt, and
acknowledged that she could receive an under other than honorable
conditions discharge.  If she had gone to court-martial she could have
received a bad conduct  discharge, 6 months confinement, forfeiture of two-
thirds pay and allowances for 6 months and reduction to the lowest enlisted
grade.  Therefore, the applicant's contention that her discharge was
inequitable is not supported by the evidence.


4.  Rather than facing the consequences of a trial by court-martial the
applicant submitted a request for discharge for the good of the service, in
lieu of trial by court-martial.  Although she may now believe that she made
the wrong choice, she should not be allowed to change her mind at this late
date.

5.  The applicant's post service achievements and conduct are noted.
However, good post service conduct alone is not normally sufficient for
upgrading a properly issued discharge and the ABCMR does not upgrade
discharges based solely on the passage of time.

6.  The applicant’s voluntary request for separation under the provisions
of Army Regulation 635-200, Chapter 10, for the good of the service to
avoid trial by court-martial, was administratively correct and in
conformance with applicable regulations.

7.  The type of discharge directed and the reasons for separation were
appropriate considering all the facts of the case.  The records contain no
indication of procedural or other errors that would tend to jeopardize her
rights.

8.  In order to justify correction of a military record the applicant must,
or it must otherwise satisfactorily appear, that the record is in error or
unjust.  The applicant has failed to submit evidence that would satisfy
that requirement.

9.  The applicant was charged with seven specifications of larceny.
Therefore, they are not considered an isolated incident.  Therefore, her
quality of service did not meet the standards of acceptable conduct and
performance of duty for Army personnel.  As a result, the applicant is not
entitled to an honorable discharge.

10.  In view of the applicant's abuse of a position of trust and the
seriousness of the charges that were preferred, her record of service is
not satisfactory. Therefore, there is no basis to upgrade her discharge to
a general discharge.

11.  Based on all of the foregoing, there is insufficient basis to upgrade
the applicant's discharge.

12.  Records show the applicant exhausted her administrative remedies in
this case when her case was last reviewed by the ADRB on 9 January 1997.
As a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 8 January 2000.  However,
the applicant did not file within the 3-year statute of limitations and has
not provided a compelling explanation or evidence to show that it would be
in the interest of justice to excuse failure to file in this.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__JRS   _  __JRM __  ___LF___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                     _    Joe R. Schroeder __
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040006848                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050628                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(NC, GRANT , DENY, GRANT PLUS)          |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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