RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  26 February 2008
	DOCKET NUMBER:  AR20070014637 


	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. Linda D. Simmons

Chairperson

Ms. LaVerne Douglas

Member

Mr. John Heck

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 general discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that she was discharged due to pregnancy.  She served honorably while she was on active duty and she feels that she should have an honorable discharge since that is what she would have received under current standards. 

3.  The applicant provides no additional documentation 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 12 April 1971, in military occupation specialty (MOS) 96B, Military Intelligence Analyst. 
The applicant was a student undergoing this training; however, she did not complete it and was not awarded the MOS.  

3.  The evidence shows that while attending AIT (advanced individual training) at Fort Huachuca, the applicant was AWOL (absent without leave) for the period 26 July through 11 August 1971.

4.  The applicant was promoted to pay grade E-2 on 1 September 1971 and was reassigned to Fort Sam Houston, Texas to undergo training in the MOS 91A, Medical Corpsman.  On 29 September 1971, after arrival at Fort Sam Houston, the applicant again departed AWOL.



5.  Charges were preferred against the applicant on 26 November 1971, for being AWOL from 29 September 1971 to 8 November 1971, while attending AIT, and from 18 November 1971 to 24 November 1971.

6.  All the documents containing the facts and circumstances surrounding the applicant's discharge are not present in the available records.  However, the applicant's records contain a copy her DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) which shows that on 14 December 1971, she was discharged, in the pay grade of E-2, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  She was furnished a general discharge, under honorable conditions.  She had 45 days time lost.

7.  The applicant’s medical records are unavailable for review. 

8.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of her discharge within its 15-year statute of limitations.  

9.  Army Regulation 635-200 set forth the basic authority for separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could, at any time, after the charges had been preferred, submit a request for discharge for the good of the service,
in lieu of trial by court-martial.  An undesirable discharge was normally considered appropriate.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

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 sets forth the basic authority for the separation of enlisted personnel.  Chapter 8 of that regulation pertains to separation of enlisted women-pregnancy.  It states that if the Soldier is still in entry-level status, her service will be uncharacterized. If the Soldier is beyond entry-level status, her service will be characterized as honorable or under honorable conditions.  Prior to characterization as under honorable conditions, the Soldier will be advised of the specific factors in the service record that warrant such a characterization, and the notification procedure will be used. 

DISCUSSION AND CONCLUSIONS:

1.  All the facts and circumstances pertaining to the applicant's discharge are unavailable for review. 

2.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize her rights.

3.  The available evidence shows that the applicant's discharge was based on her misconduct, for AWOL, for which charges were preferred. 

4.  The applicant contends that she was discharged due to pregnancy.  However, her medical records are unavailable review.  She has provided no evidence, and there is none in the available records, to show that she was pregnant while serving on active duty or prior to her discharge. 

5.  The applicant claims that she served honorably while on active duty.  It is apparent that the discharge authority did not believe her service to have been honorable, based on her misconduct, for AWOL.  The applicant's contention 
that she merited an honorable discharge instead of a general discharge is acknowledged; however, an undesirable discharge was normally considered appropriate for a discharge for the good of the service.

6.  The applicant stated that she should have an honorable discharge since that     is what is given now.  According to regulation, chapter 8, pregnancy, Soldiers separated while still in an entry-level status will have their service uncharacterized and Soldiers beyond entry-level status will have there service characterized as honorable or under honorable conditions.  Prior to characterization as under honorable conditions, the Soldier will be advised of the specific factors in the  service record that warrant such a characterization. 

7.  There is no evidence in the applicant's records, and the applicant has provided none, to show that her discharge was unjust.  She also has not provided evidence sufficient to mitigate the character of her discharge.


8.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of her general discharge to honorable.  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

___LD___  ___LS___  __JH___  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
AR20070014637
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20080226
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19711214
DISCHARGE AUTHORITY
AR 635-200, chap 10
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.