BOARD DATE:	  17 November 2009

		DOCKET NUMBER:  AR20090009855 


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 general discharge be upgraded to honorable.

2.  The applicant states that she wants her discharge upgraded to honorable because she has been a law abiding citizen since her discharge.

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 enlisted in the Regular Army on 29 September 1981 for a period of 4 years.  She successfully completed basic training and advanced individual training and was awarded military occupational specialty 54B (chemical operations specialist).  She was promoted to sergeant/E-5 effective 20 May 1984.  On 8 May 1985, the applicant was honorably discharged for immediate reenlistment.  She reenlisted on 9 May 1985 for a period of 6 years.

3.  On 16 September 1988, charges were preferred against the applicant for using cocaine.  Trial by special court-martial was recommended.

4.  The applicant consulted with counsel and requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), 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 laws.  She acknowledged that she might expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  She elected to make a statement in her own behalf.  In summary, she stated that she regretted the one incident which ruined her entire military career, that she served 7 years of good conduct in the military, and she requested a general discharge on behalf of the two children she supported.  She pointed out that she achieved the rank of E-5 and was on the E-6 promotion list, that she received awards and commendations, that she graduated from several service schools, and that she was recently selected to attend Drill Sergeant School.

5.  On 31 October 1988, the separation authority approved the applicant's voluntary request for discharge and directed that she be furnished an under other than honorable conditions discharge.

6.  Accordingly, the applicant was discharged under other than honorable conditions on 3 November 1988 under the provisions of Army Regulation 
635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  She had served a total of 7 years, 1 month, and 5 days of creditable active service.

7.  On 14 December 1992, the Army Discharge Review Board (ADRB) upgraded the applicant's discharge to a general discharge.

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 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.

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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  Good post-service conduct alone is normally not a basis for upgrading a discharge.

2.  The ADRB upgraded the applicant's discharge under other than honorable conditions to a general discharge on 14 December 1992.

3.  The applicant’s record of service during her last enlistment included a special court-martial charge for using cocaine.  She was a sergeant.  As a result, her record of service 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.

4.  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.

5.  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)                                         AR20090009855



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ABCMR Record of Proceedings (cont)                                         AR20090009855



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