RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  25 October 2007
	DOCKET NUMBER:  AR20070008491 


	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.


Ms. Catherine C. Mitrano

Director

Ms. Judy L. Blanchard

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. Scott W. Faught

Member

Mr. Roland S. Venable

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 an upgrade of her discharge.  

2.  The applicant states, in effect, that her discharge should be upgraded because while she was on active duty she went absent without leave (AWOL) and had a nervous breakdown because her child was taken away from her by the Georgia’s Human Services.  

3.  The applicant provides a self-authored letter in support of her application.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant’s record shows that she initially enlisted in the Regular Army and entered active duty on 30 June 1999.  She was trained in and awarded military occupational specialty (MOS) 92G (Food Service Specialist).  The highest grade she attained was pay grade E-2.

3.  The applicant’s record indicates that she went AWOL from 22 December 2000 to 14 January 2001, from 21 January 2001 to 14 February 2001 and from 
6 to 28 March 2001.  There is no evidence in her military record which indicates that she was counseled or received non judicial punishment for the offenses.  The applicant’s record also indicates that her unit commander on 11 April 2001, initiated separation action on her under the provisions of chapter 14, however, for unknown reason the discharge process was stopped or dropped. 

4.  On 11 January 2002, a Mental Status Evaluation found no evidence of mental defect, emotional illness, or psychiatric disorder, sufficient to warrant disposition through military medical channels.  The applicant was found mentally responsible, able to distinguish right from wrong and possessing sufficient mental capacity to participate intelligently in any proceedings which would involve her.  She was cleared for any administrative action deemed appropriate. 

5.  On 24 January 2002, the applicant was notified by her unit commander that separation action was being initiated on her under the provisions of chapter 
14 -12c, Army Regulation 635-200, by reason of Misconduct-Commission of a Serious Offense, with a discharge under honorable conditions.  The reason for the proposed action was the applicant’s numerous incidents of being AWOL and that she was dropped from the rolls of the Army as a deserter. 

6.  On the same day, the applicant acknowledged receipt of the proposed action against her and consulted with legal counsel.  She was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to her, and the effect of any action taken by her in waiving her rights.  Subsequent to receiving this counseling, the applicant completed her election of rights by waiving her right to have her case considered by an administrative separation board, and declined to submit statements in her own behalf.  

7.  On 8 February 2002, the appropriate authority approved the recommendation, reduced the applicant to the lowest enlisted grade and directed the issuance of a discharge under other than honorable conditions (UOTHC).  It was further recommended that the rehabilitative requirements be waived. 

8.  On 14 March 2002, the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 14 -12c, (2) by reason of Misconduct, with a discharge UOTHC.  The separation document (DD Form 214) she was issued at the time confirms that she held the rank of private/E-1 (PV1), and had completed a total of 2 years, 6 months and 3 days of active military service and 68 days of time lost.

9.  Army Regulation 635-200 sets forth the policy for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of serious offense, conviction by civil authorities, desertion, or absences without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  Army policy states that a discharge UOTHC 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, 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.

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.  The contentions of the applicant were carefully considered, however, there is no evidence in her military record to support her allegations. 

2.  The evidence of record shows the applicant’s separation under the provisions of Army Regulation 635-200, Chapter 14, was based upon her misconduct for commission of a serious offense; for going AWOL on three different occasions.  

3.  The evidence of record shows that the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  Lacking evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Thus, the applicant’s record of service clearly shows that her overall quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to an honorable discharge.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__ LDS __  __ SWF _  __ RSV _   DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.





____Linda D. Simmons_____
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/10/25 
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.

2.

3.

4.

5.

6.