IN THE CASE OF:	  

		BOARD DATE:	        03 FEBRUARY 2009

		DOCKET NUMBER:  AR20080017834 


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 undesirable discharge be upgraded to an honorable discharge. 

2.  The applicant states that she needs to have her discharge upgraded so that she can be eligible for medical benefits.

3.  The applicant provides her DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and her marriage 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 military records show that she enlisted in the Women's Army Corps on 29 September 1967 and entered basic training.  

3.  On 14 October 1967, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for absenting herself without proper authority from her unit on or about 0600 hours, 12 October 1967, and remaining so absent until on or about 2200 hours on the same day.  Her punishment consisted of 7 days of extra duty.

4.  On 3 November 1967, the applicant accepted NJP under Article 15 of the UCMJ for absenting herself without authority from her unit on or about 
22 October 1967, and remaining so absent until on or about 28 October 1967.  Her punishment consisted of forfeiture of $22.00 and 5 days of extra duty.

5.  The applicant went absent without leave (AWOL) on 10 November 1967, and remained in this status until she returned to military control on 14 November 1967.  

6.  On 6 May 1968, the applicant was convicted by a summary court-martial for absenting herself without authority from her unit on or about 15 November 1967, and remaining so absent until on or about 24 April 1968.  She was sentenced to forfeiture of $50.00 and restriction to the limits of the company area for 60 days.  Her sentence was approved and ordered to be executed on that same day.

7.  On 24 May 1968, a psychiatric evaluation was conducted on the applicant, and the psychiatrist who performed this evaluation cleared the applicant for any administrative or judicial action deemed appropriate by her command.  He also recommended she be considered for an administration separation.

8.  On 10 June 1968, the applicant's commanding officer advised her that she was being considered for elimination from the service for unfitness under the provisions of paragraph 6a(1), Army Regulation 635-212 (Discharge for Unfitness and Unsuitability).  She was also advised of her rights.

9.  On 12 June 1968, the applicant acknowledged that she had been advised by counsel of the basis for the contemplated action to accomplish her separation for unfitness under the provisions of Army Regulation 635-212.  She waived consideration of her case and personal appearance before a board of officers, and waived representation by counsel.  She also elected not to submit statements in her own behalf.  She further acknowledged that she understood that she could expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to her.  
Additionally, she understood that, as the result of issuance of an undesirable discharge under conditions other than honorable, she may be ineligible for many or all benefits as a veteran under both Federal and State law, and that she could expect substantial prejudice in civilian life.  

10.  On or after 12 June 1968, the proper separation authority approved the applicant's discharge for unfitness under the provisions of Army Regulation
635-212, and directed that she be issued an Undesirable Discharge Certificate.  On 25 June 1968, the applicant was discharged accordingly.

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

12.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 6a(1) of this regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

13.  Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations) governs the policies and procedures for the separation of enlisted personnel.  Paragraph 3-7a provides, in pertinent part, 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.  Paragraph 3-7b of Army Regulation 635-200 provides, in pertinent part, 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.

15.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her undesirable discharge should be upgraded to an honorable discharge.

2.  The fact that the applicant is requesting that her discharge be upgraded so that she may become entitled to medical benefits was noted.  However, the ABCMR does not grant requests for upgrade of discharges solely for the purpose of making an applicant eligible for benefits.

3.  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.

4.  The evidence of record confirms that the applicant’s discharge processing was accomplished in accordance with applicable regulations and that her discharge accurately reflects her overall record of service.  The type of discharge directed was appropriate considering all the facts of the case.  The evidence of record also confirms that the rights of the applicant were fully protected throughout the separation process.

5.  The applicant’s record of service shows that she accepted NJP under Article 15 of the UCMJ on two occasions and was convicted by a summary court-martial in a period of less than 9 months, of which only 3 months and 5 days was creditable military service.  Based on the applicant's extensive record of indiscipline in such a brief time span, her service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders her service unsatisfactory.  As a result, she is not entitled to either an honorable or general 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.



      ________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)                                         AR20080017834



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ABCMR Record of Proceedings (cont)                                         AR20080017834



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