IN THE CASE OF:	

		BOARD DATE:	  28 April 2009

		DOCKET NUMBER:  AR20090001432 


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 under other than honorable conditions discharge be upgraded.

2.  The applicant states that her discharge was inequitable because it was based on one isolated incident with 28 months of service with no other adverse action.  The applicant further states that she is seeking help from the Department of Veterans Affairs (DVA) because she is homeless and is recovering from drug addiction.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge or Dismissal From the Armed Forces of the United States), dated 
11 December 2008.

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 had prior service in the Army National Guard (ARNG).  She enlisted in the Regular Army on 17 November 1982 for a 3-year term of service.

3.  On 4 September 1984, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for not being at her appointed place of duty.

3.  Evidence of record shows that the applicant was absent without leave (AWOL) for the periods 21 January 1985 through 24 February 1985 and 1 March 1985 through 25 March 1985.

4.  The applicant's court-martial charge sheet is not available.  However, her records indicate that court-martial charges were preferred against her for 
8 specifications of not being at her appointed place of duty and 2 specifications  of being AWOL.

5.  On 19 April 1985, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200.  The applicant indicated in her request that she understood she could be discharged under other than honorable conditions; that she may be deprived of many or all Army benefits; that she may be ineligible for many or all benefits administered by the DVA; and that she may be deprived of her rights and benefits as a veteran under both Federal and State law.  She also acknowledged that she may expect to encounter substantial prejudice in civilian life.  She waived the right to provide a statement on her own behalf.

6.  On 24 April 1985, the appropriate authority approved the applicant's request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200.  He directed that the applicant be issued an Under Other Than Honorable Conditions Discharge Certificate.  On 21 May 1985, the applicant was discharged with a characterization of service of under other than honorable conditions.  She had completed 2 years, 4 months, and 7 days of creditable active service during that period of service with 60 days of lost due to being AWOL.

7.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade her discharge.  On 16 August 1995, the ADRB reviewed and denied the applicant's request for an upgrade.  The ADRB determined that the applicant's discharge was proper and equitable.  

8.  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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. An under other than honorable conditions discharge is normally considered appropriate.

9.  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.  

10.  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 contends that her discharge was inequitable because it was based on one isolated incident.  However, evidence shows that she previously received one Article 15 and had 1 instance of AWOL prior to having court-martial charges preferred.

2.  The applicant's records show that she was charged with 8 specifications of not being at her appointed place of duty and 2 specifications of being AWOL and requested separation from the service in lieu of court-martial.  She had completed 2 years, 4 months, and 7 days of creditable active service with a total of 60 days lost time due to AWOL.  Based on these facts and her previous misconduct, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of an honorable or general discharge.

3.  In the absence of evidence to the contrary, it is presumed that the applicant's separation was accomplished in compliance with applicable regulations and without procedural errors that would jeopardize his rights.  Therefore, it is concluded that the characterization of the applicant’s discharge was proper and equitable.

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)                                         AR20090001432





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ABCMR Record of Proceedings (cont)                                         AR20090001432



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