IN THE CASE OF:	  

	BOARD DATE:	  10 July 2008

	DOCKET NUMBER:  AR20080007588 


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 feels everyone makes mistakes and that the way a person learns from those mistakes, makes that person better.  She further adds that since her discharge, she has been married for 15 years to a successful service member who served in Iraq and retired from the Army after serving for 20 years.  She concludes she served her country proudly and should not have to suffer for the rest of her life because of one mistake.

3.  The applicant did not provide ant 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 4 years on 21 September 1988.  She completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 94B (Food Service Specialist).  The highest rank/grade she attained during her military service was specialist four (SP4)/E-4.

3.  The applicant's record shows she was awarded the Army Service Ribbon, the Army Achievement Medal (2nd Award), the Army Good Conduct Medal (1st Award), the Overseas Service Ribbon, and the Army lapel Button.  Her records do not show any significant acts of valor during her military service.

4.  On 16 October 1992, court-martial charges were preferred against the applicant for one specification of stealing $607.50, on or about 26 February 1992; one specification of wrongfully and unlawfully making, under lawful oath, a false statement that she did not receive a $607.50 cashier's check, on or about 20 May 1992; and one specification of receiving, endorsing, and deriving benefits from the proceeds of said cashier's check, on or about 26 March 1992. 

5.  On 28 October 1992, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to her.  Following consultation with legal counsel, she requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

6.  In her request for discharge, the applicant indicated that she understood that by requesting discharge, she was admitting guilt to the charges against her, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions.  She further acknowledged she understood that if the 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 her rights and benefits as a veteran under both Federal and State law.

7.  On 16 November 1992, the applicant’s immediate commander recommended approval of the applicant’s discharge with a General Under Honorable Conditions Discharge Certificate.  He further remarked that the offenses were sufficiently serious to warrant separation from the Army and that the applicant had no further rehabilitation potential. 
8.  On 17 November 1992, the applicant’s intermediate commander echoed the immediate commander's comments and also recommended approval of the applicant’s discharge with a General Under Honorable Conditions Discharge Certificate.

9.  On 20 November 1992, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed she receive an Under Other Than Honorable Conditions Discharge Certificate and be reduced to the lowest enlisted grade.  Accordingly, the applicant was discharged on 1 December 1992. The DD Form 214 she was issued at the time shows she was discharged for the good of the service with a characterization of service of Under Other Than Honorable Conditions.  This form further confirms she completed a total of 4 years, 2 months, and 11 days of creditable active military service.  

10.  On 16 January 1997, the Army Discharge Review Board (ADRB) denied the applicant's petition for an upgrade of her discharge.

11.  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 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, at the time an undesirable discharge was normally considered appropriate.

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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

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.  The applicant contends that her discharge should be upgraded.

2.  The applicant's successful 15-year marriage to a service member who served in Iraq and has since retired, is noted.  Additionally, the applicant's contention that everyone makes mistakes is also noted.  However, the applicant’s record shows she was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  

3.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects her overall record of service.  

4.  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.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general or an honorable discharge.

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)                                         AR20080007588



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ABCMR Record of Proceedings (cont)                                         AR20080007588



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