IN THE CASE OF:	  

		BOARD DATE:	        29 October 2009

		DOCKET NUMBER:  AR20090010198 


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, reconsideration of her earlier request for an upgrade of her under other than honorable conditions (UOTHC) discharge to an honorable discharge (HD). 

2.  The applicant states, in effect, that she was awarded two Army Good Conduct Medals (AGCMs) for her honorable service and therefore believes her UOTHC should be upgraded to an HD. 

3.  The applicant provides character references, spotlight awards, and certificates of appreciation in support of her application.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070012895, on 29 January 2008.

2.  The applicant now provides a new argument and new submissions in support of her previous request that require reconsideration.  




3.  The applicant's record shows she enlisted in the Regular Army and entered active duty, on 20 November 1986, and that she was trained in and awarded military occupational specialty 63B (Light Wheel Vehicle Mechanic).  Her record shows that specialist four (SP4) is the highest rank/grade she attained while serving on active duty.

4.  During the original review of the case it was determined that the applicant voluntarily requested discharge to avoid a court-marital conviction that could have resulted in a punitive discharge.  The applicant’s discharge was also determined to be proper and equitable. 

5.  The applicant provides ten character references from employers and coworkers that attest to her good character, exceptional work habits and outstanding attitude at the workplace.  She also provides awards she has received for outstanding customer service.   

6.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows, in Item 41 (Awards and Decorations), that she earned the following awards during her active duty tenure:  Army Service Ribbon, Army Achievement Medal 
(2nd Award), Army Good Conduct Medal (2nd Award), National Defense Service Medal, Army Mechanic Badge, and Sharpshooter Marksmanship Qualification Badge with Grenade and Rifle Bars.

7.  The applicant's record shows that court-martial charges were preferred against her under the Uniform Code of Military Justice (UCMJ) as follows:  Article 90, by disobeying a lawful order from a superior commissioned officer to submit to a blood alcohol test; Article 91, by being disrespectful in language towards a superior noncommissioned officer NCO and superior warrant officer; Article 92, by being derelict in the performance of her duties; Article 112, by being drunk while on duty as a mechanic; Article 134, by dishonorably uttering worthless checks; by being drunk and disorderly; and communicating threats (two specifications).  

8.  The applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the effects of a UOTHC discharge, and of the rights available to her.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  In her request for discharge, she acknowledged she understood 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 she could encounter substantial prejudice in civilian life by reason of a UOTHC discharge and she elected to submit a statement in her own behalf.  However, her statement is not on file in her record and/or available for review.

9.  On 28 January 1994, the separation authority approved the applicant’s request for discharge and directed that she receive a UOTHC discharge.  On 
3 February 1994, the applicant was discharged accordingly.  The DD Form 214 she was issued at the time shows she was discharged under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for the good of the service in lieu of court-martial, and that she received an UOTHC discharge.  It also shows she completed a total of 7 years, 
2 months, and 14 days of creditable active military service.  

10.  On 28 April 1997, the Army Discharge Review Board (ADRB), after careful consideration of the applicant's military records and all other available evidence determined that she had been properly and equitably discharged, and voted to deny her request for an upgrade of her discharge and the narrative reason for separation.

11.  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 HD or general discharge (GD) is authorized, a UOTHC discharge is normally considered appropriate for members separated under these provisions.

12.  Paragraph 3-7a of the same regulation provides that an honorable discharge (HD) 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.  Paragraph 3-7b 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 request for reconsideration of her earlier petition for an upgrade of her discharge and the new evidence she submitted were carefully considered.  However, there is still and insufficient evidentiary basis to support granting the requested relief.  

2.  The evidence of record confirms the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge. After consulting with defense counsel, she voluntarily requested discharge in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 

3.  The applicant's post service conduct, as attested to in the character reference statements and awards provided, is noteworthy.  However, this factor alone is not sufficiently mitigating to support granting the requested relief given the applicant's overall record of service.  Her record documents an extensive disciplinary history of misconduct, as evidenced by the myriad of court-martial charges preferred against her.  As a result, her overall record did not support the issue of an HD or GD by the separation authority at the time of her discharge, nor does it support an upgrade of her discharge at this late date.  

4.  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 or that would support amendment of the original Board decision in this 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 to amend the decision of the ABCMR set forth in Docket Number AR20070012895, dated 29 January 2008.




      _______ _   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)                                         AR20090010198



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ABCMR Record of Proceedings (cont)                                         AR20090010198



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