IN THE CASE OF:	

		BOARD DATE:	  21 April 2009

		DOCKET NUMBER:  AR20090001350 


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 be upgraded to honorable.

2.  The applicant states that she was almost getting out of the Army on an honorable discharge before she was charged with disobeying a staff sergeant in the laundry.  She goes on to state that she does not think it was fair because she and the staff sergeant had a few words and he knew that she was short and on her way home.  She also states that she was stripped of her rank and was sent to a disciplinary facility.  She continues by stating that she had not done anything in 3 years of service when she and her husband had an altercation in which her husband hit her and his first sergeant stated that she was insubordinate to him, which was the only thing done in the 3 years of her career.

3.  The applicant provides a copy of her Certificate of Release or Discharge from Active Duty.

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 enlisted in the Regular Army on 19 June 1979 for a period of 3 years, training as a food service specialist, and assignment to Fort Ord, California.  She completed all of her training at Fort Jackson, South Carolina, and was transferred to Fort Ord for her first and only duty assignment.  She was advanced to the pay grade of E-4 on 1 June 1981.

3.  On 11 March 1982, nonjudicial punishment (NJP) was imposed against the applicant by the battalion commander for behaving with disrespect towards a superior commissioned officer by calling her a profane name.  Her punishment consisted of a reduction to the pay grade of private first class, a forfeiture of pay for 2 months, and extra duty and restriction for 45 days.  The applicant appealed the punishment and on 26 March 1982, the appeal authority granted the appeal in part by suspending the punishment of forfeiture of pay for 2 months until 24 May 1982.

4.  On 29 April 1982, NJP was imposed against the applicant for willfully disobeying a lawful order from a superior noncommissioned officer (NCO).  Her punishment consisted of a reduction to the pay grade of E-2 (suspended for 30 days) and confinement at the correctional confinement facility (CCF) for 7 days.  Additionally, the suspended punishment of forfeiture of pay for 2 months was also vacated.

5.  On 12 May 1982, charges were preferred against the applicant for six separate specifications of willfully disobeying lawful orders from superior NCOs and one specification of treating a superior NCO with contempt using profane language toward him.

6.  On 9 July 1982, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, in lieu of trial by court-martial.  In her request she indicated that she was making the request of her own free will, without coercion from anyone and that she was aware of the implications attached to her request.  She also admitted that she was guilty of the charges against her or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  She acknowledged that she understood that she could receive a discharge under other than honorable conditions and that she might be deprived of all benefits as a result of such a discharge.  She further elected to submit a statement in her own behalf whereas she requested that she be issued a General Discharge Certificate and asserted that the charges she was facing stemmed from her first day at the CCF and that she was not feeling well at the time and suspected that she was pregnant which was subsequently confirmed.  She also stated that she probably should have done what she was told to do but felt sick at the time.

7.  The appropriate authority (a major general) approved her request on 14 July 1982 and directed that she be furnished a discharge under other than honorable conditions.

8.  Accordingly, she was discharged under other than honorable conditions on 21 July 1982 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  She had served 3 years, 1 month, and 3 days of active service.

9.  On 18 September 1982, she applied to the Army Discharge Review Board (ADRB) for an upgrade of her discharge.  On 10 May 1983, the ADRB determined that her discharge was both proper and equitable under the circumstances and voted unanimously to deny her request for an upgrade.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate that he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  After being afforded the opportunity to assert her innocence before a trial by court-martial, she voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on her records.  In doing so she admitted guilt to the charges against her.

4.  The Board has noted the applicant’s contentions and finds that they are not sufficiently mitigating to warrant relief under the circumstances when compared to her undistinguished record of service and the nature of the charges against her at the time.

5.  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)                                         AR20090001350





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ABCMR Record of Proceedings (cont)                                         AR20090001350



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