IN THE CASE OF:	  

	BOARD DATE:	  17 July 2008

	DOCKET NUMBER:  AR20080006978 


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, an upgrade of her under other than honorable conditions (UOTHC) discharge.  

2.  The applicant states, in effect, that she would like her discharge upgraded so that she could receive Post Traumatic Stress Disorder (PTSD) counseling.  

3.  The applicant provides the following documents in support of her application:  Psychiatric Nurse Practitioner Letter; Birth Certificate; Marriage Certificate; Social Security Card; and Separation Document (DD Form 214).  

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 that she enlisted in the Regular Army and entered active duty on 17 January 1980.  Her Personnel Qualification Record (DA Form 2-1) shows that she successfully completed basic combat training at Fort Dix. New Jersey and advanced individual training (AIT) at Fort Lee, Virginia. Upon completion of AIT, she was awarded military occupational specialty (MOS) 76W (Petroleum Supply Specialist) and assigned to Fort Bragg, North Carolina.  

3.  On 20 June 1980, after failing to report to Fort Bragg, the applicant was placed in an absent without leave (AWOL) status.  She remained AWOL for 
22 days until returning to military control at Fort Lee on 12 July 1980.  

4.  The applicant's record documents no acts of valor, significant achievement, or service warranting special recognition.  Her disciplinary history includes her acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following three separate occasions for the offenses indicated:  5 August 1980, for being AWOL from 21 June through 10 July 1980; 15 December 1980, for being disrespectful in language toward a senior noncommissioned officer (NCO), disobeying a lawful order, failing to go to her appointed place of duty at the prescribed time, and being AWOL from 20 November through 9 December 1980.  

5.  A Report of Mental Status Evaluation, dated 10 June 1981, shows the applicant was mentally responsible, and met medical retention requirements.  Her military medical records contain no treatment records or other document that indicate she was suffering from a disabling physical or mental condition at the time of her discharge processing.  

6.  The applicant's Official Military Personnel File (OMPF) is void of a separation packet containing the specific facts and circumstances surrounding her separation processing.  The record does include a properly constituted separation document (DD Form 214) that shows she was discharged under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court-martial, on 20 July 1981.  It also shows that at the time of her discharge, she had completed a total of 1 year, 3 months, and 1 day of creditable active military service and had accrued 97 days of time lost due to AWOL.

7.  The applicant a letter from a Psychiatric Nurse Practitioner that indicates the applicant has been a patient under his/her care for PTSD since December 2005. The letter gives no indication of the underlying reason for the applicant's condition.  

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

9.  Army Regulation 635-200 (Active Duty Enlisted Administrative 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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. An under other than honorable conditions (UOTHC) discharge normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial.  However, the separation authority may direct a general discharge (GD) if such is merited by the Soldier's overall record during the current enlistment.  An honorable discharge (HD) is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that her discharge should be upgraded in order for her to receive PTSD counseling was carefully considered.  However, there is insufficient evidence to support her claim.  

2.  The available evidence does not include a separation packet that contains the specific facts and circumstances surrounding the applicant’s final discharge processing.  However, it does include a properly constituted DD Form 214 that identifies the reason and characterization of the applicant’s final discharge.  Therefore, Government regularity in the discharge process is presumed. 

3.  The applicant’s separation document confirms she was discharged under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court-martial.  In connection with such a discharge, she was charged with the commission of an offense punishable with a punitive discharge under the UCMJ. Procedurally, she was required to consult with defense counsel, and to voluntarily request separation from the Army in lieu of trial by court-martial.  In doing so, she would have admitted guilt to the stipulated offense(s) under the UCMJ that authorized the imposition of a punitive discharge.  In the absence of information to the contrary, it is concluded that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 

4.  The record shows the applicant voluntarily requested discharge to avoid a court-martial that could have resulted in her receiving a punitive discharge.  The UOTHC she received was normal and appropriate under the regulatory guidance, and her undistinguished record of service clearly did not support a GD or HD at the time, nor does it support an upgrade now.  

5.  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 this requirement.

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)                                         AR20080006978



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ABCMR Record of Proceedings (cont)                                         AR20080006978



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