RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  18 December 2007
	DOCKET NUMBER:  AR20070008995 


	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

Mr. Michael L. Engle

Analyst

The following members, a quorum, were present:


Mr. John N. Slone

Chairperson

Ms. Marla J. N. Troup

Member

Mr. Thomas M. Ray

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, in effect, a change of the reason for her discharge from “in lieu of trial by court-martial” to “medical.” 

2.  The applicant states that her discharge based on misconduct was unjust because the military physicians at Madigan Army Hospital, Fort Lewis, Washington, had determined that she was medically incapacitated.  

3.  The applicant provides a copy of her Certificate of Release or Discharge from Active Duty (DD Form 214) and a Department of Veterans Affairs (VA) rating decision, dated 10 April 2007. 

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.  On 28 April 1997, the applicant entered active duty as a member of the Army National Guard.  She completed her initial training and was awarded military occupational specialty 71L1O (Administrative Specialist).

3.  On 7 September 2001, the applicant was advanced to the rank of private first class, pay grade E-3.

4.  Personnel Actions (DA Forms 4187) show that the applicant was AWOL (absent without leave) during the following periods:  7 to 9 December 2001; 
22 to 25 January 2002; 7 to 10 February 2002; and from 6 to 9 March 2002.  The applicant was also held in pretrial confinement from 13 February to 5 March 2002.

5.  The documentation showing that charges were preferred under the Uniform Code of Military Justice for violation of Article 86, AWOL, is not available for review.

6.  On 4 March 2002, the commanding general approved the applicant’s request for discharge in lieu of trial by court-martial and directed that she be issued a discharge under other than honorable conditions.

7.  The discharge packet is missing from her military records.  However, her 
DD Form 214 shows that she was administratively discharged on 12 March 2002, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial [for the good of the service].  Her service was characterized as under other than honorable conditions.  She had completed 4 years, 9 months and 9 days of creditable active duty and had a total of 33 days of lost time due to being AWOL and in confinement.

8.  Army Regulation 635-200 (Personnel Separations) 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 trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

9.  Under the UCMJ, the maximum punishment allowed for violation of Article 86, for AWOL of more than 3 days but not more than 30 days is confinement for 
6 months and forfeiture of two-thirds pay per month for 6 months.  The UCMJ also provides, in pertinent part, that if an accused is found guilty of two or more offenses for none of which dishonorable or bad-conduct discharge is authorized, the fact that the authorized confinement without substitution for these offenses is 6 months or more will, in addition, authorize bad-conduct discharge and forfeiture of all pay and allowances.

10.  The VA rating decision dated 10 April 2007, as provided by the applicant, shows that she was awarded service connected disability for schizoaffective disorder, bipolar type, with an evaluation of 70 percent effective 28 June 2007.  It based this decision of the applicant’s service medical records for the period from 13 October 2001 to February 2002, but acknowledged that she had not been diagnosed with this disorder while on active duty.  It opined that the applicant’s feelings of extreme stress probably caused her to start drinking in the early stages of her schizoaffective disorder.  

11.  Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has an impairment rated at less than 30 percent disabling.  It further provides at section 1201, for the physical disability retirement of a member who has an impairment rated at least 30 percent disabling.

DISCUSSION AND CONCLUSIONS:

1.   In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with her overall record.

2.  There is no available evidence showing that the applicant had any medical condition, incurred while entitled to receive basic pay, which was so severe as to render her medically unfit for retention on active duty.   Accordingly, the applicant was separated from active duty for reasons other than physical disability.  

3.  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 the aforementioned requirement.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_JNS____  __MJNT_  __TMR __  DENY APPLICATION








BOARD DETERMINATION/RECOMMENDATION:

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.






___      John N. Slone __
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
 
DATE BOARDED
20071218
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR 635-200. . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.