RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 March 2007
	DOCKET NUMBER:  AR20060011202 


	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. Gerard W. Schwartz

Acting Director

Ms. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Mr. William Powers

Chairperson

Mr. Paul Smith

Member

Mr. Jerome Pionk

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 that her discharge under other than honorable conditions be upgraded to honorable. 

2.  The applicant states that the mental state she was in at the time of her enlistment made it impossible for her to handle the mental stress.  She contends that she had three children at the time of her enlistment and that her husband had just died of cancer.  She had always wanted to be in the service and thought she could handle it.  She did not realize the emotional strain it would be with her children left at home and she just could not do any better at the time.  She has always been ashamed of her conduct and would like to finally have a clear conscience.  She also contends that her daughter is in the Army and she does not want her daughter to be ashamed of her.

3.  The applicant provides no additional evidence in support of her application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 18 January 1983.  The application submitted in this case is dated 29 July 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.  On 26 May 1982, the applicant underwent an enlistment physical examination and was found qualified for enlistment in the U.S. Army Reserve (USAR) with a physical profile of 111111.  In item 8 (Statement of Examinee’s Present Health and Medications Currently Used) on her Standard Form 93 (Report of Medical History), dated 26 May 1982, she reported that, “I am in good health.”

4.  The applicant enlisted in the USAR on 26 May 1982 and she was ordered to active duty for training.  While in basic training, she went absent without leave (AWOL) on 22 June 1982.   She returned to military control on 6 December 1982. On 8 December 1892, charges were preferred against the applicant for the AWOL period.  
5.  On 9 December 1982, the applicant consulted with counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  She indicated in her request that she understood she might be discharged under conditions other than honorable and furnished an other than honorable discharge; that she might be ineligible for many or all benefits administered by the Veterans Administration; that she would be deprived of many or all Army benefits; and that she might be ineligible for many or all benefits as a veteran under both Federal and State law.  She also acknowledged that she might expect to encounter substantial prejudice in civilian life because of an other than honorable discharge.  She elected not to make a statement in her own behalf. 

6.  On 29 December 1982, the separation authority approved the applicant's request for discharge and directed that she be furnished a discharge under other than honorable conditions.

7.  Accordingly, the applicant was discharged under other than honorable conditions on 18 January 1983 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of court-martial.  She had served 2 months and 9 days of total active service with 167 days of lost time.  

8.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of her discharge within its 15-year statute of limitations.

9.  Army Regulation 635-200 sets forth the basic authority for the 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, 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.

10.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  

11.  Army Regulation 635-200, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

12.  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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows the applicant underwent an enlistment physical examination on 26 May 1982 and was found qualified for separation by competent medical authorities with a physical profile of 111111.  The applicant also reported that she was in good health at that time.  There is no medical evidence of record that shows the applicant had any mental condition prior to her enlistment in the USAR on 26 May 1982.  

2.  The applicant’s claim of personal/family problems does not provide a sufficient basis for upgrading her discharge.  There is no evidence of record to show the applicant sought assistance from her chain of command or chaplain on a way to resolve her problems within established Army procedures prior to going AWOL.     
3.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  She had an opportunity to submit a statement in which she could have voiced his concerns and she failed to do so.  

4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

5.  The applicant’s brief record of service included 167 days of lost time .  As a result, her record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge or a general discharge.

6.  Records show the applicant should have discovered the alleged injustice now under consideration on 18 January 1983; therefore, the time for the applicant to file a request for correction of any injustice expired on 17 January 1986.  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 timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

WP____  __PS____  _JP_____  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.


___William Powers__________
          CHAIRPERSON




INDEX

CASE ID
AR20060011202
SUFFIX

RECON

DATE BOARDED
20070313
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19830118
DISCHARGE AUTHORITY
AR 635-200 Chapter 10
DISCHARGE REASON
For the good of the service
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.