RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 March 2007
	DOCKET NUMBER:  AR20060012709 


	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.


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	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 (UOTHC) be upgraded to general under other honorable conditions.

2.  The applicant states, in effect, that this discharge was unjust because the loss of her mother was really a great loss for her.  She asks that the Board recognize and understand the deep impact on anyone who has faced the loss of a parent.

3.  The applicant provides three Certificates of Achievement; her Letter of Appreciation; two Certificates of Training; a Certificate of Promotion; her Certificate of High School Equivalency; her Honorable Discharge Certificate; and her award certificate for the Army Achievement Medal.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 16 May 1991.  The application submitted in this case is dated 15 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 Regular Army on 6 December 1979.  She completed the required training and was awarded military occupational specialty 31M (Multichannel Communications Equipment Operator).  She was honorably released from active duty on 7 December 1982 and was transferred to the 
U.S. Army Reserve Control Group (Reinforcement) on the following date.

4.  She enlisted in the Regular Army on 29 December 1986 for a period of three years.  

5.  On 13 April 1987, she accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana on or about 5 February 1987.  Her punishment consisted of a forfeiture $304.00 pay per for 2 months; reduction to private E-1; extra duty for 45 days; and restriction for a period of 45 days.
6.  She was absent without leave (AWOL) on 21 May 1989 and surrendered to military authorities on 22 February 1991.

7.  On 28 February 1991, charges were preferred against the applicant for being AWOL from 21 May 1989 to 22 February 1991.   

8.  The applicant consulted with legal counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  In doing so, she admitted guilt to the offense charged and acknowledged that she might encounter substantial prejudice in civilian life and that she might be ineligible for many or all Army benefits administered by the Veterans Affairs (VA) if a discharge UOTHC was issued.  The applicant did not submit statements in her own behalf.  

9.  On 29 April 1991, the separation authority approved the discharge under the provisions of Army Regulation 635-200, chapter 10 with issuance of a discharge UOTHC.

10.  The applicant was discharged on 16 May 1991 under the provisions of Army Regulation 635-200, chapter 10 for the good of the service with a discharge UOTHC.  She had completed 2 years, 7 months, and 6 days of active military service during the period under review.  She had 642 days of lost time due to AWOL.

11.  The applicant applied to the Army Discharge Review Board (ADRB) on 27 February 1995 for an upgrade of her discharge.  The ADRB denied her request on 10 December 1996.

12.  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 UOTHC is normally considered appropriate.

13.  Army Regulation 635-200, paragraph 3-7, 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.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

15.  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 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 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 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.  There is no indication that the request was made under coercion or duress.

2.  The applicant's record of service shows she received nonjudicial punishment under Article 15, UCMJ for wrongfully using marijuana and was AWOL for 642 days during the period under review.  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 for a general under honorable conditions discharge.  

3.  The applicant’s statements have been noted.  Regrettably, however, she has not provided sufficient evidence which indicates the actions taken in her case were in error or unjust.  Therefore, there is no basis for granting the applicant's request for an upgrade of her discharge to general other than honorable conditions.  

4.  Records show the applicant exhausted her administrative remedies in this case when her case was last reviewed by the ADRB on 10 December 1996.  As a result, the time for the applicant to file a request for correction of any error injustice to this Board expired on 9 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.




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          CHAIRPERSON




INDEX

CASE ID
AR20060012709
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070301
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19910516
DISCHARGE AUTHORITY
AR635-200, chapter 10 . . . . .  
DISCHARGE REASON
For the good of the Service
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
110.0000
2.

3.

4.

5.

6.