RECORD OF PROCEEDINGS


	IN THE CASE OF:	

	BOARD DATE:	  29 April 2008
	DOCKET NUMBER:  AR20080002707 


	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.









      The following members, a quorum, were present:













	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, an upgrade of her under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states, in effect, that she believes her under other than honorable conditions discharge, in lieu of court-martial, was unjust and she would like for her discharge to be upgraded to an honorable discharge.

3.  The applicant adds that her discharge is preventing her from obtaining medical care for an injury which occurred while she was on active duty.

4.  In a DD Form 293, Application for the Review of Discharge from the Armed Forces of the United States, which was appended to her request to the Board, she states, in effect, her discharge was inequitable because it was based on one isolated incident in 27 months of service with no other adverse action.

5.  In a self-authored, hand-written note to the Board, she repeated the above contentions.

6.  In support of her request, the applicant provides a copy of a DD Form 293 and her self-authored, hand-written note to the Board.

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 US Army Reserve, Delayed Enlistment Program, on 19 January 1990.  She enlisted in the Regular Army for a 

period of 3 years on 1 May 1990.  She successfully completed her basic and her advanced individual training at Fort Jackson, South Carolina.  On completion of her advanced training, she was awarded the military occupational specialty (MOS) 94B (Food Service Specialist).

3.  On 28 September 1990, the applicant was reassigned to Fort Lewis, Washington, as her first duty station.

4.  The applicant's records document the highest rank and pay grade she held on active duty was Specialist Four, E-4.  The record shows she achieved this rank and pay grade on 1 July 1992.  The record contains no documented acts of valor, achievement, or service warranting special recognition.

5.  The applicant's separation "packet" is not available in her service personnel record; however, the applicant's service personnel record contains a completed DD Form 214, Certificate of Release or Discharge from Active Duty, that was signed by the applicant at the time of her discharge.

6.  The applicant was discharged with an under other than honorable conditions discharge, in the rank and pay grade of Private, E-1, on 14 December 1992, under the provisions of Army Regulation (AR) 635-200, Chapter 10, for the good of the service-in lieu of court-martial.

7.  On the date of her discharge, the applicant had completed 2 years, 7 months, and 14 days creditable active military service, with no time lost.

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.  AR 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, at any time after the charges have been preferred, 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, but the separation authority may direct a general discharge or an honorable discharge if such is merited by the Soldier's overall record and if the Soldier's record is so meritorious that any other characterization clearly would be improper.

10.  AR 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.  AR 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 separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  In order to justify correction of a military record, the applicant must show, 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. 

2.  The available evidence shows the applicant was discharged under the provisions of AR 635-200, Chapter 10, for the good of the service-in lieu of trial by court-martial.  In connection with such a discharge, the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Procedurally, the applicant was required to consult with defense counsel, and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  In doing so, the applicant admitted guilt to the stipulated offense(s) under the UCMJ.

3.  The available evidence indicates that all requirements of law and regulation were met and it is believed that the rights of the applicant were fully protected throughout the separation process.  While all documents related to her discharge are not available, in the absence of any evidence to the contrary, Government regularity in the discharge process is presumed.

4.  The evidence shows the applicant was discharge under the provisions of AR 635-200, Chapter 10.  The characterization of service for this type of discharge is normally under other than honorable conditions and it is believed the applicant was aware of that prior to requesting discharge.  It is therefore believed that the reason for discharge and the characterization of service were both proper and equitable.

5.  It is apparent the applicant desires to have her under other than honorable conditions discharge upgraded to enable her to gain access to, it is believed, Department of Veterans Affairs (VA) medical benefits; however, the Board does not grant upgrades of discharges for the purposes of qualifying applicants for benefits administered by that agency.

6.  In view of the foregoing, there is no basis for granting the applicant's request for an upgrade of her under other than honorable conditions discharge to either a general, under honorable conditions, discharge or to a fully honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x____  ___x_____  ____x___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.





      __________x____________
                CHAIRPERSON
ABCMR Record of Proceedings (cont)                                         AR20080002707



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508