RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  5 April 2007
	DOCKET NUMBER:  AR20060012513 


	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.



	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 either an honorable or general discharge. 

2.  The applicant essentially states that the Board should consider her application because she has changed since being in the military, and now realizes that she was wrong.

3.  The applicant provides three third-party letters in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 20 September 1982, the date of her discharge from the Regular Army.  The application submitted in this case is dated 18 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’s military records show that she enlisted in the Regular Army on 25 September 1979.  She completed basic training at Fort Jackson, South Carolina, but academically failed to graduate from advanced individual training (AIT) for military occupational specialty (MOS) 71L (Administrative Specialist).  She was then transferred from Fort Jackson, South Carolina to Fort Benjamin Harrison, Indiana for AIT in MOS 75B (Personnel Administrative Specialist), but also academically failed to graduate.  She was then reassigned from Fort Benjamin Harrison, Indiana to Fort Sam Houston, Texas for AIT in MOS 71G (Patient Administrative Specialist), which she did graduate from, and was awarded this MOS.  She was then reassigned to Walter Reed Army Medical Center in Washington, D.C. for what would be her first and only permanent duty assignment.


4.  On 8 May 1981, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for assaulting another Soldier.  Her punishment consisted of forfeiture of $100.00 per month for 
1 month, 5 days of extra duty, and a suspended reduction from specialist four to private first class, which was later remitted.

5.  On 9 July 1982, the applicant again accepted NJP under Article 15 of the UCMJ for failing to go at the time prescribed to her appointed place of duty.  Her punishment consisted of 14 days of extra duty.

6.  On 11 August 1982, charges were preferred against the applicant for larceny.

7.  On 10 September 1982, the applicant voluntarily requested discharge for the good of the Service under the provisions of Army Regulation 635-200 (Enlisted Personnel), Chapter 10 (Discharge in Lieu of Trial by Court-Martial).  In her request, she understood that she could request discharge for the good of the Service because charges were preferred against her under the UCMJ which authorized the imposition of a bad conduct or dishonorable discharge.  She also acknowledged that she made this request for discharge of her own free will and was not subjected to any coercion whatsoever by any person.  She also understood that by submitting her request for discharge, she acknowledged that she was guilty of at least one of the charges against her or of a lesser-included offense, which also authorized the imposition of a bad conduct or dishonorable discharge.  She also stated that under no circumstances did she desire further rehabilitation, for she had no desire to perform further military service.  

8.  In her request for discharge, the applicant acknowledged that prior to completing her request, she was afforded the opportunity to consult with appointed counsel, who had fully advised her of the nature of her rights under the UCMJ, the elements of the offenses with which she was charged, any relevant lesser included offenses thereto, and the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty; the possible defenses which appear to be available at that time; and the maximum permissible punishment if found guilty.  She also understood that although her legal counsel furnished her legal advice, the decision was her own.  

9.  The applicant also understood that if her request for discharge was accepted, she may be discharged under other than honorable conditions and furnished an Under Other Than Honorable Discharge Certificate.  She also acknowledged that she had been advised and understood the possible effects of an other than honorable discharge and that, as a result of the issuance of such a discharge, she would be deprived of many or all Army benefits, and that she may be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that she may be deprived of her rights and benefits as a veteran under both Federal and State Law.  She also understood that she may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  The applicant elected not to submit a statement on her own behalf.  

10.  On 14 September 1982, the proper approval authority approved the applicant’s discharge under Army Regulation 635-200, Chapter 10, and directed that she be furnished an Under Other Than Honorable Conditions Discharge Certificate.  He also directed that the applicant would be reduced to the lowest enlisted grade.  On 20 September 1982, the applicant was discharged accordingly.

11.  The applicant essentially stated that the Board should consider her application because she has changed since being in the military, and now realizes that she was wrong.  She also provided three third-party letters which essentially state that the applicant is a well mannered, helpful, and dependable human being.

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

13.  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 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.

14.  Army Regulation 635-200 paragraph 3-7, 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.



15.  Army Regulation 635-200, paragraph 3-7, also 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.  The applicant contends that her discharge under other than honorable conditions should be upgraded to either an honorable or general discharge. 

2.  The fact that the applicant stated that she has changed since being in the military, and now realized that she was wrong was noted.  The three third party letters of support regarding her post service conduct were also noted; however, good post service conduct alone is not a basis for upgrading a discharge.  

3.  It is clear that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  It is also clear that she voluntarily requested discharge from the Army in lieu of trial by court-martial.  As she did not provide any evidence which shows that any requirements of law and regulation were not met, or that her rights were not fully protected throughout the separation process, regularity must be presumed in this case.  As a result, the applicant's discharge accurately reflects her overall record of service.

4.  The applicant's record of service shows that she accepted NJP under Article 15 of the UCMJ on two occasions, and was charged with larceny.  She voluntarily requested discharge from the Army in lieu of trial by court-martial.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders her service unsatisfactory.  Therefore, she is not entitled to either a general discharge or an honorable discharge.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 20 September 1982; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
19 September 1985.  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

___LS___  ___JR __  ___SF___  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.




_____ Linda Simmons________
          CHAIRPERSON




INDEX

CASE ID
AR20060012513
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070405
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19820920
DISCHARGE AUTHORITY
AR 635-200, CHAPTER 10 
DISCHARGE REASON
DISCHARGE IN LIEU OF TRIAL BY CM
BOARD DECISION
DENY
REVIEW AUTHORITY
AR 15-185
ISSUES         1.
144.7200.0000
2.

3.

4.

5.

6.