IN THE CASE OF:	  

		BOARD DATE:	  19 May 2009

		DOCKET NUMBER:  AR20090001957 


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 under other than honorable conditions (UOTHC) discharge be upgraded to a fully honorable discharge (HD), and that the reason for her discharge (for the good of the service in lieu of court-martial) in Item 28 (Narrative Reason for Separation) of her DD Form 214 (Certificate of Release or Discharge from Active Duty) be deleted.

2.  The applicant states, in effect, that her military career was exemplary until one incident and she believes she was not properly advised on how to handle the situation.  She claims she was unjustly pressured to accept a chapter 10 discharge instead of fighting for what she believed was cruel and unusual physical and mental pressure.  She states that under this pressure, she made a terrible choice and took the chapter 10 discharge, not fully understanding what it meant.  She states that it is her belief that other corrective measures could have been taken and would not have resulted in her being discharged for this incident. 

3.  The applicant further states that her career was on the fast track before she arrived at Fort Belvoir, Virginia.  She claims that upon her arrival at Fort Belvoir she immediately immersed herself in her duties and extracurricular activities, including graduating from the Air Assault School and the Primary Leadership Development Course (PLDC).  She claims that along the way she earned certificates of achievement and was even chosen as the female most valuable player (MVP) for a Fort Belvoir track meet.


4.  The applicant states that it was not until she was reassigned to Base Operations that her problems began.  She claims she was immediately scrutinized and humiliated in front of her peers and some superiors by her managing sergeant.  She indicates that on numerous occasions she appealed to her first sergeant (1SG) and commanding officer (CO) to reassign her, but to no avail.  She states that she made a terrible mistake when she lost her car to an accident and because she worked a late shift, public transportation was not available.  She states that she found another Soldier to exchange shifts with her which would allow her to report for duty on time via public transportation; however, her sergeant denied that request and informed her that if she was one minute late for work she would have her chaptered out of the Army.  The applicant indicates that it was only after she walked approximately 10-15 miles to work at an unsafe hour that she made a huge mistake that would ruin her career. She indicates that she could have been punished by some other means instead of being immediately put out of the Army ending an otherwise commendable career.

5.  The applicant provides a self-authored statement, letter of appreciation, and three certificates in support of his 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 16 September 1988.  She completed basic combat training at 
Fort McClellan, Alabama and advanced individual training (AIT) at Fort Rucker Alabama.  Upon completion of AIT, she was awarded military occupational specialty (MOS) 93P (Flight Operations Coordinator).


3.  The applicant’s DA Form 2-1 (Personnel Qualification Record) shows that she was promoted to specialist four (SP4)/E-4 on 1 November 1989, and this was the highest rank she held while serving active duty.  

4.  Item 9 (Awards and Decorations) of the applicant's DA Form 2-1 shows she earned the following awards during her tenure on active duty:  Army Service Ribbon, Air Assault Badge, Overseas Service Ribbon, National Defense Service Medal, Noncommissioned Officer Professional Development Ribbon, Expert Marksmanship Qualification Badge with Rifle Bar, and Marksman Marksmanship Qualification Badge with Grenade Bar.  The record documents no acts of valor, or additional acts of significant achievement or service warranting special recognition. 

5.  The applicant’s Official Military Personnel File (OMPF) contains a DA Form 4187 (Personnel Action), dated 5 September 1991, which shows she was reduced to private (PV1)/E-1 on 30 August 1991, due to chapter 10 action, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) action taken against her.

6.  The applicant's record does not include a separation packet containing the specific facts and circumstances surrounding the applicant’s separation processing.  However, it does include a properly constituted DD Form 214 that was authenticated by the applicant on the date of her discharge, which was 
12 September 1991.  The DD Form 214 identifies the authority and reason for the applicant's discharge, which shows she was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service-in lieu of court-martial, and that she received an UOTHC discharge.   

7.  Army Regulation 635-200, in effect at the time, 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.  An UOTHC discharge normally is appropriate for a Soldier who is discharged in lieu of court-martial.  However, the separation authority may direct a general, under honorable conditions discharge (GD), if such is merited by the Soldier's overall record during the current enlistment.  An HD is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper.  


8.  Army Regulation 635-200, paragraph 3-7a of the enlisted separations regulation 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.

9.  Army Regulation 635-200, paragraph 3-7b of the enlisted separations regulation provides that a GD 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’s contention that her UOTHC discharge should be upgraded to an HD because she was a model Soldier who was improperly informed on how to handle the situation that resulted in her discharge was carefully considered.  However, there is an insufficient evidentiary basis to support her claim.

2.  The applicant's record is void of a discharge packet containing the specific facts and circumstances concerning the events that led to her discharge.  However, there is a properly constituted DD Form 214 on file that was authenticated by the applicant with her signature on the date of her separation.  This document identifies the reason and characterization of the discharge, and carries with it a presumption of government regularity in the discharge process.  

3.  The applicant’s DD Form 214 confirms she was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service-in lieu of 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 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 evidence 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.  Notwithstanding the certificates and accomplishment noted by the applicant, her record was not so clearly meritorious that it would have supported the issuance of an HD or GD by the separation authority at that time, nor is it sufficiently meritorious to support an upgrade now.  Therefore, absent any evidence of record indicating an error or injustice in the discharge process, there is an insufficient evidentiary basis to warrant granting the applicant her requested relief.

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)                                         AR20090001957



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ABCMR Record of Proceedings (cont)                                         AR20090001957



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