IN THE CASE OF:	  

		BOARD DATE:	        30 June 2009

		DOCKET NUMBER:  AR20090003923 


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 character of discharge be changed to Honorable.

2.  The applicant states, in effect, that she was a young woman being harassed by her First Sergeant.  She sought assistance through the chain of command to no avail.  She went AWOL for 29 days and then turned herself in.  She had less than 30 days left in the Army and feels the character of her discharge was severe considering her length of service.  Her First Sergeant intimidated her into accepting this discharge.

3.  The applicant provides no additional evidence to support this 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 enlisted in the Regular Army on 6 June 1979 for a period of 
4 years at the rank of Private First Class (PFC)/E-3.  She completed the required training and was awarded military occupational specialty (MOS) 05B (Radio Operator).  The highest rank she attained was pay grade E-4.

3.  On or about 21 April 1983 the applicant received nonjudicial punishment for failing to pay a debt in the amount of $209. 23; which is in violation of the Uniform Code of Military Justice, Article 134.  Her imposed punishment was a reduction to Private E-2.

4.  On 7 July 1983, court martial charges were preferred against the applicant for being absent without leave (AWOL) from her organization on or about 6 May 1983 through on or about 7 July 1983.

5.  On 8 July 1983, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the effects of a discharge under other than honorable conditions, and of the rights available to her.  The applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  She acknowledged that the charges preferred against her under the Uniform Code of Military Justice authorized the imposition of a bad conduct or dishonorable discharge.  Moreover, she did not desire further rehabilitation or to perform further military service.  She acknowledged that she was making the request by her own free will and had not been subjected to any coercion.  By submitting this request she acknowledged that she was guilty of the charges that were preferred against her.  After consulting with counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  She also stated her understanding that if her discharge request was approved she could be deprived of many or all Army benefits, that she could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that she could be deprived of her rights and benefits as a veteran under both Federal and State law.  She further indicated that she understood that she could encounter substantial prejudice in civilian life by reason of a discharge under other than honorable conditions.  The applicant did not submit a statement in her own behalf; she did not request a separation physical or a delay in the processing of all court-martial charges.

6.  On 4 August 1983, the separation authority approved the applicant’s request for discharge, that she be reduced to the lowest enlisted grade, and directed that she be issued an Under Other Than Honorable Conditions Discharge Certificate.

7.  On 17 August 1983, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to her at the time, confirms the applicant completed a total of 4 years, 0 months, and 3 days of creditable active military service with 62 days lost due to AWOL.

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.  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.

11.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of her discharge within its 15-year statute of limitations.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention was carefully considered and found to be insufficient.  There is no evidence and the applicant has not provided any evidence that shows the punishment she received was inequitable or unjust. The applicant did not provide any evidence nor was there any evidence in her record to support her claim of being harassed by her First Sergeant.  

2.  The evidence of record confirms that the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge.  After consulting with defense counsel, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  Her discharge under other than honorable conditions was administratively correct and in conformance with applicable regulations.  There is no indication that her request was made under coercion, duress, or that her rights were violated in any way.  Further, the applicant acknowledged in a signed statement that she understood that if her discharge request was approved, she could be deprived of many or all Army benefits administered by the VA, and that she could be deprived of her rights and benefits as a veteran under both Federal and State law.  She also acknowledged she understood that she could encounter substantial prejudice in civilian life by reason of a discharge under other than honorable conditions.

3.  The evidence of record confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, the rights of the applicant were fully protected throughout the separation process, and her discharge accurately reflects her overall record of service.

4.  Therefore, in view of the foregoing, there is no basis for granting the applicant’s request.

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)                                         AR20090003923



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ABCMR Record of Proceedings (cont)                                         AR20090003923



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