RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  13 March 2007
	DOCKET NUMBER:  AR20060010878 


	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.

X
	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 that her discharge under other than honorable conditions be upgraded to at least a general discharge and that the narrative reason for separation be changed to a more favorable reason. 

2.  The applicant states that she was young and immature at the time and did not know how to get help.  She goes on to state that she was sexually molested by a superior and the sergeant told her he would physically hurt her if she turned him in.  She continues by stating that she felt as though she had no options at the time so she ran and hid from him.  She also states that if she knew then what she knows now, she would have went through proper channels and probably would still be in the service.  She further states that she is a good person who follows the rules and desires a fresh start in life and a chance at redemption.  

3.  The applicant provides no additional documents with her application. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 2 July 1984.  The application submitted in this case is dated 1 August 2006.

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 was born on 9 October 1962 and enlisted in the Regular Army in Los Angeles, California on 8 March 1983 for a period of 4 years and training as a light wheel vehicle power generation mechanic.  She completed her training and was transferred to Fort Bliss, Texas.  

4.  On 27 January 1984, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 19 January to 24 January 1984.  Her punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay and extra duty.  

5.  On 3 February 1984, she again went AWOL and remained absent in desertion until she was returned to military control at Fort Bliss on 22 May 1984, and was transferred to Fort Sill, Oklahoma, where charges were preferred against her for the AWOL offense.  

6.  On 25 May 1984, after consulting with defense counsel, the applicant submitted a request for discharge for the good of the service, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by             court-martial.  In her request she indicated that she understood the charges that had been preferred against her, that she was making the request of her own free will, without coercion from anyone and that she was aware of the implications attached to her request.  She also admitted that she was guilty of the charges against her or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  She acknowledged that she understood that she could receive a discharge under other than honorable conditions and that she might be deprived of all benefits as a result of such a discharge.  She further elected to not to submit a statement in her own behalf.    

7.  It appears that the applicant got married after she enlisted and that on 6 February 1984, the applicant’s first sergeant called her to convince her to turn herself in.  However, she informed the first sergeant that she wanted a discharge from the Army and being AWOL was the only way she would get her discharge.

8.  The appropriate authority (a brigadier general) approved her request on 21 June 1984 and directed that she be discharged under other than honorable conditions.

9.  Accordingly, she was discharged under other than honorable conditions on 2 July 1984, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  She had served 1 year and 1 day of total active service and had 114 days of lost time due to AWOL.

10.  On 28 December 1994, she applied to the Army Discharge Review Board (ADRB) for an upgrade of her discharge.  She asserted the same issues at that time that she is asserting to this Board.  However, the ADRB found no evidence to support her assertions or evidence to show that she sought any assistance for her problems.  The ADRB unanimously denied her request on 17 December 1996.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against them or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and they must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive.  A discharge under other than honorable conditions is normally considered appropriate.

12.  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.
    
DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize her rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

3.  The applicant’s overall record of undistinguished service and extensive periods of unauthorized absences, during a short period of service, simply does not rise to the level of a discharge under honorable conditions.

4.  After being afforded the opportunity to assert her innocence before a trial by court-martial, she voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on her records.  In doing so she admitted guilt to the charges against her.
  
5.  Records show the applicant exhausted her administrative remedies in this case when her case was last reviewed by the ADRB on 17 December 1996.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 16 December 1999.  The applicant did not file within the ABCMR's 3-year statute of limitations and has not provided compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X___  __X __  __X____  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.




_____X______
          CHAIRPERSON




INDEX

CASE ID
AR20060010878
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070313
TYPE OF DISCHARGE
(UOTHC)
DATE OF DISCHARGE
1984/07/02
DISCHARGE AUTHORITY
AR635-200/CH10 . . . . .  
DISCHARGE REASON
GD OF SVC
BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.144.7000
689/A70.00
2.

3.

4.

5.

6.