IN THE CASE OF:	  

		BOARD DATE:		  24 November 2009   

		DOCKET NUMBER:  AR20090011209 


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 undesirable discharge be upgraded.

2.  The applicant states, in effect, that she was promised a general discharge that would later be upgraded to honorable.  She contends the Army broke their guaranteed contract with her because she enlisted for physical therapy training to help rehabilitate the injured Vietnam veterans coming back from the war and after she completed advanced individual training, instead of receiving orders for physical therapy training, she was assigned to a hospital on the obstetrics and gynecology floor assisting in baby delivery.  She claims that she requested a transfer in writing three times and on the third time she was laughed at so she packed her things and went home.

3.  The applicant states that 7 years later President Nixon issued his last orders to pick up all Vietnam era deserters and she was sent to Fort Knox, Kentucky.  The commander asked her if she wanted to stay and finish out her time and she said she would rather go home.  Her commander told her that she would be fined all of her back pay because someone had been collecting her paychecks and Internal Revenue Service Forms W-2 (Wage and Tax Statement) for 7 years.  She indicates that she was never offered legal counsel, that she was never disciplined, and that she was promised a general discharge.  She claims that they typed up an extended leave of absence form and told her that her discharge would be mailed to her.  She never received her discharge or her medic's certificate.  She states that she was told the general discharge would be upgraded to honorable in a couple of years.  She further states that she would never have left the military if she had not felt lied to or betrayed.
4.  The applicant provides a letter, dated 12 June 2009, from a Member of Congress and a newspaper article 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.  Item 33 (I am interested in applying for the school training indicated below) on the applicant's DA Form 2280 (Application for Enlistment - Women's Army Corps), dated 17 July 1969, shows the entry "Dental Training."  The applicant enlisted in the Regular Army on 31 July 1969 for 3 years for Army Career Group 91 (Medical Care and Treatment).  She was awarded military occupational specialty (MOS) 91B (medical specialist) effective 10 December 1969.

3.  The applicant departed in an absent without leave (AWOL) status on 2 February 1970.  She was apprehended by civil authorities and returned to military control on 26 January 1976.

4.  On 10 February 1976, the applicant signed a statement declaring that she had been counseled by her military defense counsel.

5.  The applicant was AWOL again on 12 February 1976 and returned to military control on 17 February 1976.  On 20 February 1976, charges were preferred against the applicant for the AWOL periods.

6.  On 20 February 1976, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  She indicated in her request that she understood that she could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that she might be deprived of many or all Army benefits, that she might be ineligible for many or all benefits administered by the Veterans Administration and that she might be deprived of her rights and benefits as a veteran under both Federal and State laws.  She also acknowledged that she might encounter substantial prejudice in civilian life because of an undesirable discharge.  She elected to submit a statement in her own behalf.  In summary, she stated that she had enlisted for physical therapy training, that she was transferred to a maternity ward in a hospital, and that after her request for transfer was denied she went AWOL and quit the Army.  She goes on to state that she went home, got married, and had three children.  She indicated that her attitude toward the Army had not changed and that if for any reason her discharge was disapproved she would go AWOL again or the Army would have to put up with her three kids and her dog.

7.  On 25 February 1976, the separation authority approved the applicant's request for discharge and directed that she be furnished an undesirable discharge.

8.  Accordingly, the applicant was discharged with an undesirable discharge on 15 March 1976 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  She had served a total of 7 months and 15 days of creditable active service with 2,190 days of lost time due to being AWOL.

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

10.  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.  At the time, an undesirable discharge was normally considered appropriate.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.

12.  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.

13.  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.  The applicant's contention that she was promised a general discharge that would later be upgraded to honorable was noted.  However, a discharge upgrade is not automatic.

2.  The applicant's contention that the Army broke its guaranteed contract with her because she enlisted for physical therapy training was noted.  However, her enlistment contract shows she enlisted for Army Career Group 91 and she was awarded MOS 91B (medical specialist).

3.  The evidence of record does not support the applicant's contention that she was never offered legal counsel.  On 10 February 1976 and 20 February 1976, the applicant consulted with counsel.

4.  The applicant's brief record of service included 2,190 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 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.

6.  The type of discharge directed and the reasons for separation were therefore 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)                                         AR20090011209



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ABCMR Record of Proceedings (cont)                                         AR20090011209



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