IN THE CASE OF:	  

		BOARD DATE:	       5 February 2009

		DOCKET NUMBER:  AR20080017798 


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 discharge under other than honorable conditions (UOTHC) be upgraded to honorable.

2.  The applicant states, in effect, that she was not a good person when she was in the Army.  However, now she is a different person.  She also states that she did not know that she could request an upgrade of her discharge.  

3.  The applicant provides no documentation 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 entered active duty on 23 March 1978, completed training, and was awarded the military occupational specialty 95C (Correctional Specialist).
3.  A DA Form 4187 (Personnel Action), dated 25 August 1978, indicates the applicant was not recommended for advancement to E-2.

4.  The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice on:

	a.  25 April 1978 for being absent from her unit for 10 hours; and 

	b.  23 October 1978 for being absent without leave (AWOL) from 4 October 1978 through 19 October 1978.  This period of AWOL was terminated due to apprehension by civilian authorities.  

5.  The applicant went AWOL on 3 November 1978.  This period of AWOL ended on 12 June 1979, as a result of apprehension by civilian authorities.  

6.  On 12 June 1979, court-martial charges were preferred against the applicant for being AWOL in excess of 30 days.

7.  On 14 June 1979, after consulting with counsel and being advised of her rights and options, the applicant submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  She acknowledged she had been advised of and understood her rights under the Uniform Code of Military Justice, that she could receive an UOTHC discharge which would deprive her of many or all of her benefits as a veteran, that she could expect to experience substantial prejudice in civilian life if she received an UOTHC discharge, and that there is no automatic upgrading or review of a less than honorable discharge.

8.  The discharge authority approved her request for separation for the good of the service and directed that she be discharged with a UOTHC discharge certificate.

9.  The applicant was discharged on 11 July 1979.  She had completed 7 months and 22 days of creditable service with 237 days (7 months and 27 days) of lost time.

10.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 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.  

11.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 86 for periods of AWOL in excess of 30 days.

12.  Army Regulation 635-200, governs the policies and procedures for the separation of enlisted personnel.  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, 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 states that she was not a good person when she was in the Army.  However, now she is a different person.  She also states that she did not know that she could request an upgrade of her discharge until recently.  

2.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military service.

3.  The applicant was AWOL on three occasions for a total of 237 days.  The two major periods of AWOL both ended as a result of civilian apprehension.  The applicant also had more time in an AWOL status than creditable good service.  The applicant’s performance and conduct does not merit a general or an honorable discharge.

4.  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)                                         AR20080017798



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ABCMR Record of Proceedings (cont)                                         AR20080017798



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