IN THE CASE OF:	  

	BOARD DATE:	  1 July 2008

	DOCKET NUMBER:  AR20080006422 


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 that her discharge be upgraded so that she can qualify for veterans benefits.

2.  The applicant states she is a hard working woman who has raised her two children as best she can.  One of them serves in the National Guard and is a full time college student.  She works in the medical field taking care of the elderly and the mentally ill.  She thinks that her status should be changed because, "I did almost complete my term."  

3.  The applicant provides a copy of her DD Form 214 (Certificate of Release or Discharge 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.  The applicant enlisted on 18 November 1986.  She completed training as a supply specialist and progressed normally.  She was awarded an Army Achievement Medal for service on 11 and 12 January 1988 and was advanced to pay grade E-4 on 1 November 1988.  

3.  During an investigation, she submitted a signed statement to the effect that she took government property from the supply room on 1 May 1988 and subsequently sold it.  She reported that she had repeated this behavior on at least eight other occasions.  The applicant indicated that she needed the money to buy food for her baby, but that she had not asked her husband for money because, "I should have had it, I should not have had so many bills."

4.  On 16 October 1989 charges were preferred against the applicant for larceny of government property in excess of $100.00 in value, larceny of private property in excess off $100.00 in value, and unlawful distribution of military property in excess of $100.00 in value.

5.  The applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial. 

6.  In her request for discharge, the applicant indicated that she understood that by requesting discharge, she was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  She further acknowledged she understood that if his discharge request was approved, she could be deprived of many or all Army benefits, that she could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that she could be deprived of his rights and benefits as a veteran under both Federal and State law.   

7.  The separation authority approved the applicant’s request for discharge and directed that he be issued an Under Other Than Honorable Conditions Discharge Certificate.  On 9 November 1989, the applicant was discharged accordingly.  She had completed a total of 2 years, 11 months, and 22 days of creditable active military service.


8.  Army Regulation 635-200 (Personnel Separations) 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 discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

9.  In 1993 the Army discharge Review Board denied the applicant's request to upgrade her discharge.

10.  The UCMJ provides for a punitive discharge for both larceny and unlawful distribution of government property of over $100.00 in value. 

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, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

2.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3.  In view of the fact that the applicant's numerous incidents started almost a year and one-half before her discharge, the applicant's contention that she nearly finished her enlistment is unconvincing.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.


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
      
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)                                         AR20080006422



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ABCMR Record of Proceedings (cont)                                         AR20080006422



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