IN THE CASE OF:	  

		BOARD DATE:	  7 January 2010

		DOCKET NUMBER:  AR20090012931 


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, that her under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge (HD) and that the reason for her discharge be changed to "Convenience of the Government." 

2.  The applicant states, in effect, that clemency is warranted in her case.  She states that it is unjust for her to have to continue to suffer the adverse consequences of her discharge.  She further claims she would not have received the same discharge under current standards.  She also states her conduct and efficiency ratings were good and she received letters of recommendation.  She claims her ability to serve was impaired by her youth and immaturity and by family problems she was experiencing at the time.  She finally claims that she was 8 months pregnant and she submitted a request for a compassionate reassignment that was unfairly denied.  

3.  The applicant provides the following documents in support of her application:  Third-Party Statements; Macomb Community College Transcript; Michigan Test for Teacher Certification (MTTC); and State of Michigan Department of Human Services Letter, dated 15 January 2009.


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's record shows she enlisted in the Regular Army on 16 March 1981.  It also shows she was trained in and awarded military occupational specialty (MOS) 64C (Motor Transport Operator) and that specialist four (SP4) was the highest rank/grade she attained while serving on active duty.

3.  The applicant's record shows that during her active duty tenure, she earned the Army Service Ribbon and Sharpshooter Marksmanship Qualification Badge with Rifle (M-16) Bar.  Her record documents no acts of valor or significant achievement.

4.  The applicant's record is void of any documents showing she was pregnant or that she submitted a request for a compassionate reassignment due to family and child care problems.  

5.  On 7 September 1982, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 2 through 4 September 1982.  Her punishment for this offense was a reduction to private first class (PFC) and a forfeiture of $320.00 per month for two months.  

6.  The applicant's Official Military Personnel File (OMPF) contains a DA Form 3836 (Notice of Return of U.S. Army Member from Unauthorized Absence) which shows the applicant departed AWOL on 8 December 1982, was dropped from the rolls (DFR) of the organization on 9 January 1983, and was apprehended and returned to military control on 7 July 1983.

7.  On 8 July 1983, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the UCMJ for being AWOL from on or about 8 December 1982 until on or about 7 July 1983.

8.  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 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 indicated that she understood that by submitting the discharge request she was acknowledging that she was guilty of the charges against her or of a lesser included offense therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.  She also acknowledged her understanding that if her discharge request were approved, she could be deprived of many or all Army benefits, that she could be ineligible for many or all benefits administered by the Veterans Administration, and that she could be deprived of her rights and benefits as a veteran under both Federal and State laws.  She further indicated that she understood that she could encounter substantial prejudice in civilian life by reason of a UOTHC discharge.  The applicant elected not to submit a statement in her own behalf.

9.  On 29 September 1983, the separation authority approved the applicant's request for discharge and directed that she receive a UOTHC discharge.  On 
25 October 1983, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) she was issued at the time shows she held the rank of private/E-1 at the time of her discharge.  It further shows she was discharged under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) and that the reason for her discharge was for the good of the service in lieu of court-martial; and that she received a UOTHC discharge.  It also confirms she completed a 2 years and 18 days of creditable active military service and had accrued 290 days of time lost due to AWOL.  

10.  The applicant provides third party statements from the principal of Glen Peters School and an occupational therapist from the Judson Center who both attest to the fact that the applicant is very creative, committed to the children she works with, and is a valuable asset.  

11.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 
15-year statute of limitations.


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

13.  Paragraph 3-7a of the same regulation provides that an 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

14.  Paragraph 3-7b of the same regulation provides that a general, under honorable conditions discharge (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 HD.  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 contention that her UOTHC should be upgraded to an HD and that the narrative reason for her discharge should be changed to "Convenience of the Government" because her discharge was unjust and her ability to serve was impaired by her youth, immaturity and family problems was carefully considered.  However, there is insufficient evidence to support this claim.   

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 evidence of record also confirms the applicant was processed for separation in lieu of trial by court-martial at her own request.  The separation authority approved her request and appropriately directed that she receive a UOTHC discharge which was consistent with regulatory policy in effect at the time and under current regulatory policy.  

4.  The applicant’s record documents no acts of valor or significant achievement and reveals a disciplinary history that includes her accrual of 290 days of time lost due to AWOL.  Contrary to her assertions, the evidence of record and independent evidence she provides fails to support her assertions that she was pregnant or that she requested and was unjustly denied a compassionate reassignment.  Further, given she successfully completed training and rose to the rank of SP4, she clearly was capable and mature enough to honorably complete her enlistment had she chose to do so.  Even if the applicant was pregnant and was experiencing family problems at the time, there is no evidence to show she ever attempted to resolve these problems through her chain of command or available community service agencies before committing the misconduct that led to her discharge.  

5.  The applicant's post-service conduct, as attested to in the supporting statements, is noteworthy.  However, this factor alone is not sufficient to support an upgrade of her discharge at this late date.  The applicant's UOTHC discharge and the authority and reason for her discharge were proper and equitable given her misconduct.  Therefore, her overall record of service did not support the issue of an HD or GD by the separation authority at the time of her discharge and does not support an upgrade of her discharge at this time.  

6.  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)                                         AR20090012931



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090012931



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1