IN THE CASE OF:	  

	BOARD DATE:	  20 May 2008

	DOCKET NUMBER:  AR20080004576 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests an upgrade of her discharge.

2.  The applicant states that she left her unit in Germany to care for her paralyzed mother and that she did not return to her unit because she did not want anyone to put her mother in a nursing home.  She further states that she needs her discharge upgraded so she can qualify for Veterans Administration (VA) medical benefits. 

3.  The applicant did not provide any additional documentary evidence 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 records show that she enlisted in the Regular Army for a period of 3 years on 13 April 1978.  She completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 64C (Motor Transportation Operator).  The highest rank/grade she attained during her military service was private (PV2)/E-2.

3.  The applicant’s awards and decorations include the Army Service Ribbon, the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), and the Expert Marksmanship Qualification Badge with Grenade Bar.  Her records do not show any significant acts of valor during her military service.

4.  On 10 September 1978, the applicant departed her unit in an absent without leave (AWOL) status.  She was subsequently dropped from the Army’s rolls on 10 October 1978.  She was apprehended by civil authorities on 1 May 1986, and was confined in Akron, Ohio, for the civilian charges of failure to appear, felonious assault, and child endangering.  

5.  On 29 July 1986, the applicant appeared before the Summit County Court of Common Pleas, Akron, Ohio, for civil charges of failure to appear, felonious assault, and child endangering.  She was sentenced to 1-5 years of confinement.

6.  On 20 August 1986, the applicant’s immediate commander initiated separation action against her in accordance with paragraph 14 of Army Regulation 635-200 (Personnel Separations), due to conviction by a civil court.  

7.  On 20 August 1986, the applicant’s intermediate commander recommended approval of the applicant’s discharge under the provisions of chapter 14 of Army Regulation 635-200.

8.  On 22 August 1986, the applicant’s senior commander concurred with the immediate commander’s comments and recommended approval of the applicant’s discharge.

9.  On 3 September 1986, the separation authority approved the applicant’s discharge, under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct-conviction by civil court and directed the applicant be furnished an Under Other Than Honorable Conditions Discharge Certificate.  Accordingly, the applicant was discharged on 26 September 1986.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) she was issued confirms she was discharged with a characterization of service of an under other than honorable conditions.  This form further confirms she completed a total of 
4 months and 27 days of creditable military service and had 2,939 days of lost time due to AWOL and confinement.
10.  On 29 August 1988, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade of her discharge.  

11.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  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.

12.  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.

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.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence in the applicant’s records and the applicant did not provide substantiating evidence that show she was undergoing a family hardship or that she reported the illness of her mother and the need to care for her to her chain of command or solicited help from the support channels available at her installation.  Furthermore, there is no evidence in the available records and the applicant did not provide sufficient evidence showing that her act of indiscipline was the result of a family hardship.  

2.  The evidence of record further shows that the applicant’s discharge was appropriate because the quality of her service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.  Her record of service shows she was convicted by a civil court for miscellaneous offenses of a serious nature.  Based on her record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to an honorable discharge.

3.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  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.  Therefore, she is not entitled to relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.



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       _   _______   ___
       CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080004576



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ABCMR Record of Proceedings (cont)                                         AR20080004576



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