BOARD DATE:	  25 August 2009

		DOCKET NUMBER:  AR20090005522 


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, in effect, that she was constantly being sexually harassed by men that her roommate would let into their room.  She contends that she tried to talk to the clergyman with no hopes of getting out and that a military police advised that if she went absent without leave (AWOL) she could get out of the Army.  She indicates that she turned herself in at Fort Sill, OK and she was told her discharge could be switched to honorable after 6 months as long as she did not get into any trouble.  She also states that she was young and just very thankful to be out of the very stressful situation.  

3.  The applicant provides a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 was born on 1 January 1958.  She enlisted in the Regular Army on 13 March 1979 for a period of 3 years.  She successfully completed basic combat and advanced individual training in military occupational specialty 71L (administrative specialist).   

3.  In January 1980, nonjudicial punishment was imposed against the applicant for being AWOL from 14 January 1980 to 18 January 1980.  Her punishment consisted of a forfeiture of pay, restriction, and extra duty. 

4.  On 9 February 1980, the applicant went AWOL and returned to military control on 19 March 1980.  On 25 March 1980, charges were preferred against the applicant for the AWOL period.  Trial by special court-martial was recommended.  

5.  On 25 March 1980, the applicant consulted with counsel and requested discharge in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  She indicated in her request that she understood she might be discharged under conditions other than honorable and furnished an other than honorable conditions discharge; that she might be ineligible for many or all benefits administered by the Veterans Administration; that she would be deprived of many or all Army benefits; and that she might be ineligible for many or all benefits as a veteran under both Federal and State law.  She acknowledged that she might expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  She elected not to make a statement in her own behalf.  

6.  On 14 April 1980, the separation authority approved the applicant's voluntary request for discharge and directed that she be furnished an under other than honorable conditions discharge.

7.  Accordingly, the applicant was discharged under other than honorable conditions on 2 May 1980 under the provisions of Army Regulation
635-200, chapter 10, in lieu of trial by court-martial.  She had served 1 year and 
6 days of creditable active service with 43 days of lost time due to being AWOL.

8.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

9.  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, 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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

10.  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.  

11.  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.

12.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence of record which shows the applicant was a victim of sexual harassment.

2.  A discharge upgrade is not automatic.

3.  Age is not a sufficiently mitigating factor.  The applicant was 21 years old when she enlisted and she successfully completed basic combat training and advanced individual training.  

4.  The applicant’s brief record of service included one nonjudicial punishment and 43 days of lost time.  As a result, her record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge or a general discharge.

5.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  She had an opportunity to submit a statement in which she could have voiced her concerns and she failed to do so.  

6.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

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)                                         AR20090005522



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ABCMR Record of Proceedings (cont)                                         AR20090005522



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