IN THE CASE OF:	  

		BOARD DATE:	        7 August 2008

		DOCKET NUMBER:  AR20080009435 


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 did not realize that she was receiving an under other than honorable conditions discharge and believes her discharge was unjust.  She was pregnant during her service in Germany and went home on ordinary leave; however, when her leave expired, she became ill and was unable to fly back to Germany.  She reported to Fort Sheridan, Illinois, and requested assistance to be assigned there but did not receive any help.  After she delivered her baby in January 1981, she reported back to Fort Sheridan in March 1981, but was sent to Fort Knox, Kentucky, instead, where she was advised to get out of the service because she had a new baby to raise.  She also states that she had served honorably from the date she enlisted and that she made every attempt to resolve the matter.

3.  The applicant provides a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 8 May 1981, and a copy of her service medical records, dated on miscellaneous dates in 1979 and 1980, 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 she enlisted in the Regular Army for a period of 4 years on 9 January 1979.  She completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 76Y (Unit Supply Specialist).  The highest rank/grade she attained during her military service was private first class (PFC)/E-3.

3.  The applicant's records show that she was awarded the Army Service Ribbon, the Marksman Marksmanship Qualification Badge with Rifle Bar, and the Marksman Marksmanship Qualification Badge with Grenade Bar.  Her records do not show any acts of valor or special recognition during her military service.

4.  On 27 June 1980, the applicant departed her unit in Germany, in an absent without leave (AWOL) status and was subsequently dropped from the Army rolls on 25 July 1980.  She surrendered to military authorities at Fort Sheridan, Illinois, and was transferred to Fort Knox, Kentucky, on 1 April 1981.  

5.  On 7 April 1981, court-martial charges were preferred against the applicant for one specification of being AWOL during the period on or about 27 June 1980 through on or about 1 April 1981.  

6.  On 8 April 1981, 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 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). 

7.  In her request for discharge, the applicant indicated that she was making this request of her own free will and was not subjected to any coercion whatsoever by any person.  She further indicated 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. 

8.  On 15 April 1981, the applicant's immediate commander recommended approval of the applicant’s discharge with a characterization of service of under other than honorable conditions.  The immediate commander remarked that the applicant’s conduct rendered her triable by court-martial under circumstances that would lead to a bad conduct or dishonorable discharge and that punishment was expected to have minimal rehabilitative effect.  Discharge was in the best interest of all concerned.  

9.  On 15 April 1981, the applicant's intermediate commander recommended approval of the applicant's discharge with a characterization of service of under other than honorable conditions.

10.  On 21 April 1981, 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.  On 8 May 1981, the applicant was discharged accordingly.  The DD Form 214 she was issued at the time of her discharge shows she was discharged for the good of the service with an under other than honorable conditions character of service.  This form further confirms the applicant had completed a total of 1 year, 6 months, and 26 days of creditable active military service and had 278 days of lost time due to AWOL.

11.  There is no indication in the applicant’s records that she applied to the Army Discharge Review Board (ADRB) for an upgrade of her discharge within its fifteen (15) year statute of limitations. 

12.  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, a discharge under other than honorable conditions is normally considered appropriate.
13.  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.

14.  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 record shows she was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  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.

3.  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 her 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)                                         AR20080009435





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ABCMR Record of Proceedings (cont)                                         AR20080009435



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