RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 March 2007
	DOCKET NUMBER:  AR20060011394 


	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. Kenneth Wright

Chairperson

Mr. Chester Damian

Member

Ms. Ernestine Fields

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, in effect, that she was in the military for approximately six years and that she served more honorable service than dishonorable service. She contends that she made a lot of mistakes and bad decisions, that she returned home from the military addicted to crack cocaine, and that she has changed her life.  She further states that she went absent without leave (AWOL) because she was addicted to crack cocaine.  When she turned herself in she did not tell her unit that she was using drugs and she chose to be discharged.  After she was discharged, she continued to use drugs.  In 1994, she entered a rehabilitation program and completed the program in 1996.  She contends that she currently holds the Deputy Director position at the program, that she obtained a college degree, and that she has her credentialed Alcoholism and Substance Abuse Counselor Trainee Certificate.

3.  The applicant provides a letter, dated 19 June 2006, from a mental health community residence supervisor at the Phoenix House; a letter, dated 16 June 2006, from a caseworker at the Nassau County Department of Social Services, Uniondale, New York; her son’s birth certificate; certificates of appreciation; a college diploma; a DD Form 214 (Certificate of Release of Discharge from Active Duty) for the period ending 24 May 1980; service personnel records; and a DD Form 214 for the period ending 5 December 1986. 
  
CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 5 December 1986.  The application submitted in this case is dated 8 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 enlisted in the Army National Guard on an unknown date.  She was ordered to active duty on 16 January 1980 for training and released from active duty on 24 May 1980.  She enlisted in the Regular Army on 19 June 1980 for a period of 3 years.  She trained as a telecommunications center operator and an administrative specialist. 

4.  The applicant went AWOL on 30 September 1985 and returned to military control on 22 April 1986.  On 2 May 1986, charges were preferred against the applicant for the AWOL period. 

5.  On 2 May 1986, 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 to make a statement in her own behalf.  In summary, she stated that her commute to work was the reason she was late for formation, that she tried to resolve her problems via her chain of command, and that she went AWOL due to family problems (sister was sick).  

6.  On 16 October 1986, 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 5 December 1986 under the provisions of Army Regulation
635-200, chapter 10, for the good of the service, in lieu of court-martial.  She had served a total of 6 years, 3 months, and 2 days of total active service with 204 days of lost time due to AWOL.  

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.  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.  

11.  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.  Good post-service conduct and accomplishments, by themselves, are normally not a basis for upgrading a discharge.

2.  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.    

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

4.  Since the applicant’s record of service included a 204-day AWOL period and her now admitted drug use, 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.

5.  Records show the applicant should have discovered the alleged injustice now under consideration on 5 December 1986; therefore, the time for the applicant to file a request for correction of any injustice expired on 4 December 1989.  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

KW_____  __CD____  ___EF__  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.



__Kenneth Wright______
          CHAIRPERSON




INDEX

CASE ID
AR20060011394
SUFFIX

RECON

DATE BOARDED
20070327
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19861205
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.