IN THE CASE OF:	  

		BOARD DATE:	  16 April 2009

		DOCKET NUMBER:  AR20080019743 


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, an upgrade of her discharge to a general, under honorable conditions discharge.

2.  The applicant states, in effect, she knows there was no excuse for her having gone absent without leave, the charge that ended her Army service.  In an addendum to her DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552) the applicant submits the reasons which prompted her submission of a request for discharge for the good of the service which include her husband's abuse of alcohol and his physical and verbal abusiveness.  This physical and verbal abusiveness, she states, made her flee many times out of emotional pain and fear of bodily harm, only to return, believing she could somehow change herself or him and keep their marriage and family together.

3.  The applicant states she knows she should have gone to her commanding officer, but her husband convinced her the Army would not protect her especially since he was also in the Army.  She loved her job in the Army and was looked upon by her superiors as an exceptional Soldier and would have made the Army a career had the circumstances been different.  In the end, she left her husband and the Army because she saw no other choice.

4.  The applicant states there was no one to explain the options available to her or the assistance that might be available to her.  She only knew she had to hide and protect herself.  When the military police found her and arrested her, she still had no one to advise her, no counseling or legal representation.  She had only two options – take a less than honorable discharge or get court-martialed.  In the emotional state she was in, she doesn't think she truly understood the implications of either option or the long-term effect on her life.  She only knew she had to get as far away from her husband as possible.  At the time she submitted her request for discharge, she lied about the reasons because she could not prove the abuse by her alcoholic husband and no one believed her.  The only thing she could think of was she was not going back to her tormentor.

5.  The applicant continues her addendum by describing events that have transpired in her life since her departure from the Army.  She also describes herself, the type of person she sees herself as being, the positive contributions the Army made on her life, and the remorse and shame she now feels for having made "those horrendous mistakes those many years ago."

6.  In support of her request, the applicant provides an addendum to her DD Form 149 explaining her rationale for having submitted her request for discharge in lieu of court-martial; a copy of a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 16 September 2008; three character witness statements from her friends and co-workers; seven enlisted efficiency and evaluation reports for her duty performance while she served in pay grades E-3, E-4, and E-5; and a copy of page one of her DA Form 2-1 (Personnel Qualification Record, Part II).

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 on 26 June 1972 and reenlisted in the Regular Army on 26 March 1974.  She successfully completed her basic training at Fort McClellan, Alabama, and her advanced individual training at Fort Dix, New Jersey, and Fort Benjamin Harrison, Indiana.  On completion of her advanced training, she was awarded the military occupational specialty 73C (Finance Specialist).
3.  The applicant's records document the highest rank and pay grade she held on active duty was specialist five/E-5.  The record shows she achieved this rank and pay grade on 15 December 1976.  The record contains no documented acts of valor, achievement, or service warranting special recognition.

4.  On 29 June 1978, the applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for absenting herself without authority on 16 June 1978 and remaining so absent until 26 June 1978.  The imposed punishment was a forfeiture of $147.00 for 1 month (suspended for 60 days).  On 21 July 1978, the suspension of forfeiture of pay was vacated.

5.  Item 21 (Time Lost) of the applicant's DA Form 2-1 shows the following periods of time lost:  16 June 1978 through 25 June 1978 due to absence without leave; 26 July 1978 through 9 August 1978 due to absence without leave; and 15 August 1978 through 2 March 1979 also due to absence without leave. 

6.  On 13 March 1979, a DD Form 458 (Charge Sheet) was completed.  Court-martial charges were brought against the applicant for absenting herself from her unit on 15 August 1978 and continuing in this status until 3 March 1979.

7.  On 13 March 1979, the applicant voluntarily submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  In her request, the applicant stated she understood she could request discharge for the good of the service because charges had been filed against her under the UCMJ which could authorize the imposition of a bad conduct or dishonorable discharge.  She added that she was making her request of her own free will and had not been subjected to coercion whatsoever by any person.  The applicant stated she had been advised of the implications that were attached to her request.

8.  The applicant stated she understood that if her request was accepted, she could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate.  She understood that as a result of issuance of such a discharge, she could be deprived of all benefits administered by the Veterans Administration [now the Department of Veterans Affairs] and that she might be deprived of her rights and benefits as a veteran under both Federal and State law.  She also understood that she could expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.

9.  The applicant stated that prior to completing her request for discharge for the good of the service she had been afforded the opportunity to consult with appointed counsel or counsel of her own choice.  On the same date, the applicant received counseling by a captain assigned to the Judge Advocate General Corps.  She was advised of the basis for the contemplated trial by court-martial and the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights available to her.  She acknowledged that the decision to submit a request for discharge for the good of the service was her own.

10.  The applicant was advised that she could submit a statement in her own behalf, which would accompany her request for discharge.  The applicant indicated she wished to submit an statement.  In her statement, the applicant stated the reasons for a chapter 10 discharge varied in the interests of the Army and herself.  She had served 6 previous years of good conduct in the Army, having enlisted in 1972.  She was ambitious and outgoing until the Volunteer Army was admitted to the service in 1974.  The discipline went downhill and the lax properties arrived.  She had no incentive by 1976.  She also submitted that she had married and had four boys ages 13 through 17 (her husband's children), they were buying 10 acres and a house in Anson, Texas, and her husband would be retiring after 20 years in the Army on 31 March 1979.  Since they were staking roots, she felt it best to separate from the Army for both sides' benefit.  She did enjoy what she worked well at during her 6 years of learning.  She felt there was nothing else for her in the Army and she wouldn't be an asset any longer.  She commented that her 6 years of Army service were very highly commendable and her records prove that statement.

11.  The applicant's request for discharge was approved on 2 April 1979 by the appropriate authority, the Commander, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma.

12.  The applicant was discharged with an under other than honorable conditions discharge in the rank and pay grade of private/E-1 on 9 April 1979 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  On the date of her discharge, the applicant had 6 years, 2 months, and 4 days of total creditable active military service with 225 days time lost.

13.  The applicant applied to the Army Discharge Review Board (ADRB) on 6 June 1981 for an upgrade of her discharge within its 15-year statute of limitations and on 26 January 1982 was notified her request for an upgrade had been denied.

14.  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, at any time after the charges have been preferred, a request for discharge for the good of the service, in lieu of trial by court-martial.  An under other than honorable conditions discharge is normally considered appropriate, but the separation authority may direct a general discharge or an honorable discharge if such is merited by the Soldier's overall record and if the Soldier's record is so meritorious that any other characterization clearly would be improper.

15.  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 separation specifically allows such characterization.

16.  The applicant submitted three character witness statements from her friends and co-workers.  The applicant is described as a hard-working, dedicated perfectionist who is trustworthy, honest, mannerly, pleasant, and someone who has excellent attendance and can always be depended upon.  None of the three character witness statements gives an indication the authors were aware she was seeking an upgrade of her discharge from the Army.  None of the character witness statements includes a recommendation for an upgrade of her discharge.

17.  The applicant submitted seven enlisted evaluation reports for the Board's consideration.  These evaluation reports cover the time span from December 1972 through August 1978.  Performance scores shown on DA Forms 2166-4 (Enlisted Efficiency Report) for the period from December 1972 through September 1974 ranged from above average to outstanding.  Evaluation report scores recorded on her DA Forms 2166-5 (Enlisted Evaluation Report) for the period ending August 1976 was 115 (the average of scores given by the rater and indorser), for the period ending August 1977 was 121.5 (the average of scores given by the rater and indorser), and for the period ending August 1978 the applicant received a score of 54 (rater score only).

DISCUSSION AND CONCLUSIONS:

1.  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 provided insufficient evidence to show her discharge was unjust and she has also not provided evidence sufficient to mitigate the character of her discharge.

2.  The available evidence shows the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  In connection with such a discharge, the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Court-martial charges were brought against the applicant for a lengthy absence without leave that extended from 15 August 1978 through 2 March 1979.

3.  Procedurally, in connection with a request for discharge the good of the service, an applicant is required to consult with defense counsel and to voluntarily and in writing request separation from the Army for the good of the service in lieu of trial by court-martial.  The applicant did so after having been counseled by an officer of the Judge Advocate General Corps.  In having applied for discharge in lieu of facing a court-martial, the applicant admitted guilt to the stipulated offense(s) under the UCMJ.

4.  The available evidence indicates that all requirements of law and regulation were met and it appears the rights of the applicant were fully protected throughout the separation process.

5.  The applicant's entire record of service was reviewed.  The record contains no documentary evidence of acts of valor or achievement which would warrant special recognition and an upgrade of her under other than honorable conditions discharge.

6.  The applicant applied to the ADRB for an upgrade of her discharge within that board's 15-year statute of limitations, but on 26 January 1982 was notified her request for an upgrade had been denied.

7.  The statements made by the applicant's friends and co-workers and submitted by the applicant were considered; however, none of the three mentioned or indicated an awareness the applicant was seeking an upgrade of her discharge.  No recommendation for an upgrade was indicated or made.

8.  The applicant's conclusion that her superiors considered her an exceptional Soldier was not supported by evaluation report scores given.  The applicant subjected herself to and received nonjudicial punishment for going absent without leave as a means of solving her personal problems.  Rather than seeking help from these same superiors, she continued absenting herself without leave eroding any trust and confidence they may have had in her until court-martial charges were preferred against her effectively ending any aspirations for an Army career.

9.  Based on the evidence of record in this case, it is believed the reason for discharge and the characterization of service were both proper and equitable and there is no basis for granting the applicant's request for an upgrade of 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)                                         AR20080019743



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ABCMR Record of Proceedings (cont)                                         AR20080019743



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