RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 January 2008
	DOCKET NUMBER:  AR20070012895 


	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. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Ms. Shirley L. Powell

Chairperson

Mr. Paul M. Smith

Member

Mr. Larry C. Bergquist

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, that her discharge, characterized as under other than honorable conditions (UOTHC), be upgraded to a general or honorable discharge.

2.  The applicant states, in effect, that most of the charges against her were in response to her attitude and mere not understanding.  She has had no problems since her discharge. 

3.  The applicant provides a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty) and a copy of her ADRB (Army Discharge Review Board) proceedings in support of her request.

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 she enlisted in the Regular Army on 20 November 1986.  She successfully completed basic combat training and advanced individual training at Fort Dix, New Jersey.  On completion of her OSUT (one station unit training), she was awarded the military occupational specialty (MOS), 63B, Light Wheel Vehicle Mechanic.  She was promoted to specialist four/pay grade E-4 effective 1 December 1988. 

3.  Charges were preferred against the applicant on an unknown date, for disobeying a lawful command from a superior commissioned officer; for being disrespectful in language toward a superior noncommissioned officer; for being disrespectful in deportment toward a superior warrant officer, on two occasions; 



for being derelict in the performance of her duties; for being drunk on duty; for dishonorably failing to maintain sufficient funds; for being drunk and disorderly; and for wrongfully communicating a threat to a commissioned and warrant officer. 

4.  On 26 January 1994, the applicant voluntarily submitted a request for discharge for the good of the service.  In her request the applicant stated she understood she could request discharge for the good of the service because charges had been filed against her under the Uniform Code of Military Justice (UCMJ), which could authorize the imposition of a bad conduct or dishonorable discharge.  She added that she was making her request of her own free will and had not been subjected to coercion whatsoever by any person.  The applicant stated she had been advised of the implications that were attached to her request and that by submitting her request, she acknowledged that she was guilty of the charge against her or of a lesser or included offense which also authorized the imposition of a bad conduct or a dishonorable discharge.  Moreover, she stated that under no circumstances did she desire further rehabilitation for she had no desire to perform further military service.

5.  Prior to completing her request for discharge for the good of the service, the applicant was afforded the opportunity to consult with counsel.  She consulted with counsel and was fully advised of the nature of her rights under the UCMJ.  Although she was furnished legal advice, she was informed that the decision to submit a request for discharge for the good of the service was her own.

6.  The applicant stated that she understood that if her request were accepted, she could be discharged under conditions other than honorable and furnished an under other than honorable conditions discharge certificate.  She was advised and understood the effects of an under other than honorable conditions discharge and that issuance of such a discharge could deprive her of many or all Army benefits that she might be eligible for, that she might be ineligible for many or all benefits administered by the Veterans Administration [now the Department of Veterans Affairs], and that she might be deprived of her rights and benefits as a veteran under both Federal and state law.  She also understood that she could expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.

7.  The applicant was advised that she could submit a statement in her own behalf, which would accompany her request for discharge.  The applicant opted to submit a statement in her own behalf; however, the statement is not available for review.
8.  On 28 January 1994, the applicant's case was reviewed by the Staff Judge Advocate, who recommended that the Commander, US Army Garrison, approve the applicant's request for discharge and that an UOTHC Certificate be issued.

9.  On 28 January 1994, the separation authority approved the applicant's request for discharge and directed that she be furnished an UOTHC discharge and that she be reduced to the lowest enlisted grade.  

10.  The applicant was discharged in the rank/pay grade, Private/E-1, on 3 February 1994.  She had a total of 7 years, 2 months, and 14 days of net active service.

11.  On 28 April 1997, the ADRB denied the applicant's petition to upgrade her discharge.

12.  Army Regulation 635-200 sets forth the basic authority for 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.

13.  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.

14.  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.





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, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the applicant's request for discharge was made under coercion or duress. 

2.  The type of separation directed and the reasons for that separation appear to have been appropriate considering all the available facts of the case.

3.  The applicant contends that most of the charges against her were in response to her attitude and mere not understanding.  She was experienced enough to know right from wrong, and she knew or should have known, that her acts of misconduct were not condoned by the Army.  

4.  The applicant states that she has had no problems since her discharge.  It is noted that the attitude that got her in trouble and discharged with an UOTHC discharge would also not be tolerated in the civilian workforce.

5.  There is no evidence in the applicant's records, and the applicant has provided no evidence, to show that her discharge was unjust.  She also has not provided evidence sufficient to mitigate the character of her discharge.

6.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of her UOTHC discharge to a general or honorable discharge.  The applicant has submitted neither probative evidence nor a convincing argument in support of her request and has not shown error, injustice, or inequity for the relief she now seeks.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__LB____  _PM____  __SLP___  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.




____  Shirley L. Powell_____
          CHAIRPERSON




INDEX

CASE ID
AR200700012895
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20080129
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19940203
DISCHARGE AUTHORITY
AR 635-200, chap 10
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.