IN THE CASE OF:	  

		BOARD DATE:	  12 February 2009

		DOCKET NUMBER:  AR20080017445 


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, that her discharge under other than honorable conditions be upgraded to an honorable discharge.  

2.  The applicant states, in effect, that she had an excellent record prior to a change in her behavior as a result of being sexually assaulted on two occasions by Soldiers, which led to incidents of absence without leave.  She further states that her Judge Advocate General representation following sexual trauma, a car accident, death of her mother, and incarceration due to absence without leave was not in her best interest.

3.  The applicant provides an American Legion statement supporting her petition, a narrative detailing her situation, civilian job performance appraisals, personal references, and an education certificate in support of this 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 Army Reserve on 
27 October 1980.  She completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 91B (Medical Specialist).  She enlisted in the Regular Army on 3 February 1983 and extended her enlistment through 2 January 1989.  The highest rank she attained while serving on active duty was specialist/pay grade E-4.

3.  The applicant's records do not show any significant acts of achievement or valor during her military service.

4.  On 3 June 1988, the applicant was charged with being absent without leave from her place of duty during the periods 10 March through 25 March 1988, 
19 April through 2 May 1988, and 9 May through 2 June 1988.  The applicant was also charged with writing a bad check in the amount of $150.00 on or about 19 March 1988.

5.  On 10 June 1988, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10 (for the good of the service – in lieu of court-martial).  She acknowledged that she was making the request of her own free will and that she had been advised of the implications that are attached to it.  She further acknowledged that she had consulted with counsel and been advised of her rights under the Uniform Code of Military Justice.

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





7.  She also acknowledged that there is no automatic upgrading or review by any Government agency of a less than honorable discharge and that she must apply to the Army Discharge Review Board (ADRB) or the ABCMR if she wished a review of her discharge.  She further acknowledged that the act of consideration by either board did not imply that her discharge would be upgraded.

8.  On 14 June 1988, the separation authority approved the applicant's request for discharge and directed that she receive an under other than honorable conditions discharge.  On 24 June 1988, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant shows she completed a total of 5 years, 4 months, and 22 days of creditable active military service and 1 year, 11 months, and 
28 days of inactive service with 57 days of lost time.

9.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of her discharge within its 15-year statute of limitations.

10.  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.  At the time, an under other than honorable conditions discharge was normally considered appropriate.

11.  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.

12.  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's records show that she had 57 days of lost time due to being absent without leave.  The applicant was discharged under the provisions of 
Army Regulation 635-200, chapter 10.  In order to be discharged under 
chapter 10, the applicant had to admit guilt and voluntarily request discharge in lieu of trial by court-martial.

2.  Based on this 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, she is not entitled to either a general or an honorable discharge.

3.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  The applicant provided a compelling account of the things that happened to her while she was on active duty.  She claims these events led to her going absent without leave.  However, the applicant has not submitted any documentation to support her contentions.

5.  The applicant’s post service record has been carefully considered.  The applicant's hard work and education are commendable.  However, she has not submitted any documentation to show that she has done anything so meritorious to warrant upgrading her discharge.

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)                                         AR20080017445



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ABCMR Record of Proceedings (cont)                                         AR20080017445



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