IN THE CASE OF:	  

		BOARD DATE: 	        30 June 2009

		DOCKET NUMBER:  AR20090001572 


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 under other than honorable conditions (UOTHC) discharge and that the narrative reason for separation be changed.

2.  The applicant states, in effect, the charges against her were the result of her taking no side in a conflict between her unit commander and first sergeant, and her reporting unit misconduct to the Inspector General (IG).  She claims that given the military background of her family, no one could or would believe she committed the offenses of which she was charged.  

3.  The applicant provides no documentary evidence 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’s record shows she enlisted in the Regular Army and entered active duty on 1 February 1995.  It further shows she was trained in and awarded military occupational specialty (MOS) 96D (Imagery Analyst), and that specialist (SPC) was the highest rank she attained while serving on active duty.  

3.  The applicant’s Official Military Personnel File (OMPF) contains a DD Form 616 (Report of Return of Absentee), which shows the applicant surrendered and returned to military control at Fort Campbell, Kentucky on 21 April 1998.  This document also shows that she had departed absent without leave (AWOL) from her unit at Fort Shafter, Hawaii, on 1 March 1998, and was dropped from the rolls (DFR) of her organization on 31 March 1998.  

4.  The applicant's OMPF is void of a separation packet containing the specific facts and circumstances surrounding her separation processing.  The record does include a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) that identifies the authority and reason for separation.  

5.  The applicant’s DD Form 214 confirms she was discharged, in the rank of private/E-1, under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court-martial with an UOTHC discharge on 20 July 1981.  It also shows that at the time of discharge, she had completed a total of 3 years, 7 months, and 8 days of creditable active military service and she had accrued 52 days of time lost due to being AWOL.  It further verifies that she earned the following awards during her active duty tenure:  Army Achievement Medal, National Defense Service Medal, Army Service Ribbon, and Driver and Mechanic Badge with Driver-W Bar.  

6.  On 31 March 1999, after carefully considering the applicant’s application, her military records, and all other available evidence, the Army Discharge Review Board (ADRB) determined the applicant’s characterization of service and the reason for discharge were proper and equitable, and voted not to change either the characterization of service or the reason for discharge.  

7.  Army Regulation 635-200 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. 
8.  This same regulation indicates an UOTHC discharge normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial under the provisions of chapter 10; however, the separation authority may direct that a general discharge (GD) under honorable conditions be issued if such is merited by the Soldier's overall record during the current enlistment.  An honorable discharge (HD) is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper.  

9.  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.

10.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The 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’s contention that her discharge was unjust was carefully considered.  However, absent any evidence of record or independent evidence provided by the applicant that supports her assertion of conflicts within her chain of command or reprisal for going to the IG, there is insufficient evidence to support her claim.  

2.  The available evidence does not include a separation packet that contains the specific facts and circumstances surrounding the applicant’s final discharge processing.  However, it does include a properly constituted DD Form 214 that identifies the reason and characterization of the applicant’s final discharge.  Therefore, Government regularity in the discharge process is presumed. 

3.  The applicant’s DD Form 214 confirms she was discharged under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by 
court-martial.  In connection with such a discharge, she was charged with the commission of an offense punishable with a punitive discharge under the UCMJ. Procedurally, she was required to consult with defense counsel, and to voluntarily request separation from the Army in lieu of trial by court-martial.  In doing so, she would have admitted guilt to the stipulated offense(s) under the UCMJ that authorized the imposition of a punitive discharge.  In the absence of information to the contrary, it is concluded that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 

4.  The record shows the applicant voluntarily requested discharge to avoid a court-martial that could have resulted in her receiving a punitive discharge.  The UOTHC discharge she received was normal and appropriate under the regulatory guidance, and her overall record of service was not sufficiently meritorious to support the separation authority issuing a GD or HD at the time of discharge, nor does it support an upgrade now.  

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)                                         AR20090001572



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ABCMR Record of Proceedings (cont)                                         AR20090001572



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