IN THE CASE OF:	 

		BOARD DATE:	  25 February 2010

		DOCKET NUMBER:  AR20090016510 


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 status be upgraded.

2.  The applicant states, in effect, that she was ill and that she contacted the charge of quarters on duty the night before to let him know that she would not be able to report for duty the following day.  She states that the charge of quarters did not properly record her absence and she was reported absent without leave (AWOL).  She states she did not accept punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) for her day of alleged AWOL and requested a trial by court-martial.  During this period, she found out she was pregnant.  She states she requested a chapter 10 discharge because her relationship with her superiors had deteriorated and she felt that her unit chain of command did not support her because she was female.  Prior to reporting to her first unit of assignment, she states she was a very good Soldier and an honor student.

3.  The applicant does not provide any supporting evidence with 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 October 1985 for a 3-year period of service.  She entered the Army in the rank/grade of private first class/
E-3 and her records show she had completed 2 years of undergraduate study at a major university.  She successfully completed basic combat and advanced individual training and was awarded military occupational specialty 91A (Medical Specialist).

3.  The applicant was assigned to Company C, 2nd Support Battalion, at Fort Lewis, Washington, on 10 July 1986 after completing her initial and advanced training.

4.  The applicant's records show she was reported AWOL from 0600 hours on 15 July 1986 to 1600 hours on 16 July 1986.

5.  There is no disciplinary history recorded in the applicant's official military personnel file.

6.  The applicant's separation processing packet and the facts and circumstances pertaining to her discharge are not available for the Board's review.  However, her records contain a duly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows that on 29 December 1986 the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 10, by reason of administrative discharge – conduct triable by court-martial.  Records show she had completed 1 year and 2 months of creditable active service and had 1 day of time lost time under the provisions of Title 10, U.S. Code, section 972.

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

8.  Army Regulation 635-200 sets forth the basic authority for the administrative separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges have been preferred.  The request must include the Soldier's acknowledgement that the Soldier understood the elements of the offense(s) charged and that the Soldier was guilty of the charge(s) or of a lesser included offense therein contained which also authorized the imposition of a punitive discharge.  A discharge under other than honorable conditions was 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.

10.  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.

11.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that she was a victim of circumstances because she was female and pregnant.  She contends did not report for duty for 1 day because she was ill and that she did not accept an Article 15 for her unauthorized absence because she had told the charge of quarters she was ill.  She contends she requested a trial by court-martial rather than accept an Article 15, but then based on her physical condition (pregnancy), she requested a chapter 10 discharge in lieu of trial by court-martial.

2.  Although the applicant's separation packet was not available for the Board's review, in order for her to be discharged under the provisions of Army Regulation 635-200, chapter 10, charges would have been preferred against her for an offense for which the authorized punishment included a punitive discharge.  The applicant would have been afforded the opportunity to consult with defense counsel and to voluntarily and in writing request separation from the Army in lieu of trial by court-martial.  In doing so, the applicant would have admitted she was guilty of the offense(s) she was charged with and acknowledged that she could receive a discharge under other than honorable conditions.

3.  In the absence of evidence to the contrary, regularity in the discharge process is presumed.  The type of discharge and the reason for separation are appropriate considering the known facts of this case.  If the applicant felt that she was innocent of the charges, she should have pursued a trial by court-martial.

4.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

5.  In view of the foregoing, there is insufficient evidence to upgrade the applicant's discharge characterization of service.

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)                                         AR20090016510



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ABCMR Record of Proceedings (cont)                                         AR20090016510



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