IN THE CASE OF:	  

	BOARD DATE:	  8 July 2008

	DOCKET NUMBER:  AR20080006386 


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, in effect, that her under other than honorable conditions discharge be upgraded to a general discharge (GD), under honorable conditions. 

2.  The applicant states, in effect, that her discharge occurred over 30 years ago when she was young and irresponsible.  She would now like an upgrade for increased employment opportunities. 

3.  The applicant provides a copy of her DD Form 214 (Report of Separation from Active Duty).

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 30 March 1978, the applicant enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) for 6 years.  On 3 April 1978, she was discharged from the DEP and enlisted in the Regular Army for 3 years.  She was 20 years old at the time of her enlistment.  She completed basic combat training; however, she failed to complete advanced individual training.

3.  On 7 August 1978, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL).  Her punishment consisted of a forfeiture of $150.00 pay per month for 2 months, and 30 days of restriction and of extra duty.  

4.  The specific facts and circumstances leading to the applicant's discharge are not contained in the official records.  Her DD Form 214 shows that she was discharged under the provisions of chapter 10, Army Regulation 635-200 (Enlisted Personnel Separations), by reason of for the good of the service – in lieu of trial by court-martial.  Her service was characterized as under other than honorable conditions and she was issued an Under Other Than Honorable Conditions Discharge Certificate.  She completed 7 months and 13 days of active duty service and had 5 days of lost time.

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

6.  Army Regulation 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 a request for a discharge for the good of the service in lieu of trial by court-martial.  The requests may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  A discharge under other than honorable conditions is normally considered appropriate.

7.  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 (emphasis added), 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.


8.  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.  The specific facts and circumstances leading to the applicant's discharge are not contained in the official record.  The only available evidence is the applicant's DD Form 214 showing she had 5 days of lost time.  Her record shows she received an Article 15 for being AWOL.    

2.  The applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, by reason of in lieu of trial by court-martial.  With this type of discharge, the applicant would have been charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  The charges against her are unknown.  However, she would have voluntarily, and in writing, requested separation from the Army in lieu of trial by court-martial.  In doing so, the applicant would have admitted guilt to the stipulated or lesser included offenses under the UCMJ.  In the absence of evidence to the contrary, regularity is presumed in the discharge process.   

3.  The applicant did not provide any evidence explaining the reasons for her discharge.  She only states that she was young and irresponsible.  Her record shows she was 20 years old at the time of her enlistment.  She met entrance qualification standards to include age.  There is no evidence that the applicant was any less mature than other Soldiers of the same age who successfully completed military service.  As such, her contentions are insufficiently mitigating to warrant a change in her discharge.

4.  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 did not submit any evidence that would satisfy this requirement.








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.


								XXX
	_______________________
      	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)                                         AR20080006386



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ABCMR Record of Proceedings (cont)                                         AR20080006386



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