IN THE CASE OF:	  

		BOARD DATE:	        31 JULY 2008

		DOCKET NUMBER:  AR20080009054 


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 uncharacterized discharge be changed to an honorable or a general discharge.

2.  The applicant states that it has been almost 20 years since she was charged and she would like to have clemency for her mistake from immaturity.  She also states that the characterization of her service should be changed "for length of total service."  She states that she has never needed or had conflict with her charge until now.  She states that she has no civilian record and that she is trying to further her career in law enforcement.

3.  The applicant provides in support of her application, a copy of her Certificate of Release or Discharge from Active Duty (DD Form 214); a copy of her discharge approval dated 10 March 1989; a copy of her Charge Sheet dated 17 November 1988; a copy of the recommendation for approval of her discharge dated 1 March 1989, from her company commander; and a copy of the recommendation for approval of her discharge dated 1 March 1989, from her brigade commander.

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 17 November 1988, the applicant enlisted in the Army in Louisville, Kentucky, for 5 years, in the pay grade of E-2.  She successfully completed her basic combat training and she was transferred to Fort Eustis, Virginia.

3.  The applicant went absent without leave (AWOL) on 7 January 1989 and she remained absent in desertion until she surrendered to military authorities on 13 February 1989.

4.  On 21 February 1989, the applicant was notified that charges were pending against her for being AWOL from 7 January 1989 until 13 February 1989.  She acknowledged receipt of the notification on 22 February 1989 and, after consulting with counsel, she submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  

5.  The appropriate authority approved the request for discharge on 10 March 1989.  Accordingly, on 21 April 1989, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  She had completed only 3 months and 29 days of net active service.  She had approximately 37 days of lost time due to AWOL and her service was uncharacterized.

6.  A review of the available records does not show that the applicant ever applied to the Army Discharge Review Board for an upgrade of her discharge within that board's 15-year statute of limitations.

7.  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 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.  A discharge under other than honorable conditions is normally considered appropriate.  

8.  Army Regulation 635-200, chapter 11, establishes policy and prescribes procedures for separating members because of unsatisfactory performance or conduct (or both) while in an entry level status.  It states, in pertinent part, that separation under this chapter applies to Soldiers who are in entry level status and before the date of the initiation of separation action, have completed no more than 180 days of continuous active duty and have demonstrated that they cannot or will not adapt socially or emotionally to military life.  Entry level status is defined as the first 180 days of continuous active duty.  It further states that the character of service for members separated under the provisions of this chapter will be uncharacterized.

9.  In accordance with Army Regulation 635-200, entry level status applies to Soldiers who, before the date of the initiation of separation action, have completed no more than 180 days of continuous active duty and have demonstrated that they cannot or will not adapt socially or emotionally to military life.  When a Soldier is separated in an entry level status, his/her service will be uncharacterized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records show that she had completed only 3 months and 29 days of net active service prior to being discharged.  

2.  The applicant's contentions have been noted.  However, lack of maturity and passage of time are not substantial bases for changing the character of her service.  The available records show that she was 21 years old at the time of her enlistment in the Army and her AWOL offense.  She had approximately 37 days of lost time due to AWOL.  She served in the Army for less than 180 days; therefore, her service was properly uncharacterized.

3.  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.

4.  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

__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)                                         AR20080009054



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ABCMR Record of Proceedings (cont)                                         AR20080009054



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