IN THE CASE OF:	  

		BOARD DATE:	  18 March 2010

		DOCKET NUMBER:  AR20090017070 


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 her discharge under other than honorable conditions be upgraded to an honorable discharge or a general discharge under honorable conditions.

2.  The applicant states she was unaware her husband, now deceased, was selling marijuana during the hours she was at work on post.  She states she was in the process of going before the E-5 promotion board when this incident occurred.  She states she now needs access to her medical benefits.

3.  The applicant provides copies of her DD Form 214 (Certificate of Release or Discharge from Active Duty) and three personal references.

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 military personnel records show she enlisted in the Regular Army on 28 May 1980 for a period of 3 years.  She completed basic combat training and advanced individual training and was awarded military occupational specialty 81C (Cartographer).

3.  On 11 November 1980, the applicant was assigned to the 63rd Engineer Company at Fort Bragg, NC.

4.  On 21 January 1983, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for failure to go at the prescribed time to her appointed place of duty.  Her punishment consisted of 14 days of extra duty and reduction to private first class/pay grade E-3.  The reduction was suspended for 90 days.  On 24 March 1983, the suspension was vacated and she was reduced to private first class/pay grade E-3.

5.  On 28 April 1983, the applicant accepted NJP under Article 15, UCMJ, for selling military property of the United States of a value of about $148.20 to a pawn shop.  Her punishment consisted of forfeiture of 7 days' pay, 14 days of extra duty, and reduction to private/pay grade E-2.

6.  On 13 May 1983, court-martial charges were preferred against the applicant for wrongful distribution of 36.74 grams, more or less, of marijuana to two specialists.

7.  On 20 June 1983, the applicant voluntarily requested discharge for the good of the service.  She submitted statements in her own behalf.  However, copies of these statements were not available for review.

8.  She acknowledged she understood the elements of the offense she was charged with and she was

* making the request of her own free will
* guilty of the offense with which she was charged
* afforded the opportunity to speak with counsel prior to making this request
* advised she may be furnished an Under Other Than Honorable Conditions Discharge Certificate

9.  In addition, the applicant was advised she may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge and she

* would be deprived of many or all Army benefits
* maybe ineligible for many or all Veterans Administration benefits
10.  A captain of the Judge Advocate General's Corps countersigned this statement and attested that he had counseled the applicant concerning the basis for her contemplated trial by court-martial and the maximum permissible punishment authorized under the UCMJ, of the possible effects of an under other than honorable conditions discharge if her request is approved, and of the procedures and rights available to her.

11.  On 12 July 1983, the appropriate authority approved the applicant's request for discharge for the good of the service.  He directed that the she be reduced to private/pay grade E-1 and be discharged under other than honorable conditions.

12.  On 10 August 1983, the applicant was discharged under the provisions of chapter 10 of Army Regulation 635-200 for the good of the service.  She had completed 3 years, 2 months, and 13 days of active service that was characterized as under other than honorable conditions.

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

14.  In a letter from her manager, dated 24 August 2009, he states he has known the applicant for 9 years as an employee.  He states she has always been a great team player with a high level of integrity and takes great pride in everything she does.  He states she tries her hardest to make sure she does her job and takes care of the guest.

15.  In a letter from the Hilton Memphis Hotel Director of Human Resources, dated 18 August 2009, she states the applicant is a very loyal team member who consistently strives for excellence in all that she does.  She states the applicant is someone they can really count on and is a team member who has made the team complete.

16.  In a letter from her pastor, dated 1 September 2009, he states he has known her for a short period of time.  He states she displays a high degree of integrity and ambition and her faithfulness and attendance is to be commended.  He states she displays the character of a good Christian young woman in every way and believes in paying her tithes and offerings.

17.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the administrative 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 at any time after the charges have been preferred.  The request must include the Soldier's acknowledgement that the Soldier understands the elements of the offense(s) charged and that the Soldier is 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 is normally considered appropriate.

18.  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.

19.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her under other than honorable conditions discharge should be upgraded to an honorable discharge or a general discharge under honorable conditions.  She contends she was unaware her husband was selling marijuana and she was in the process of going before the E-5 promotion board when the incident took place.

2.  The applicant was reduced to private first class/pay grade E-3 on 24 March 1983 and further reduced to private/pay grade E-2 on 28 April 1983.  Therefore, it is not likely she was being considered by the E-5 promotion board in May when court-martial charges were preferred.

3.  Although the applicant contends she was unaware of her husband selling marijuana, she admitted she was guilty of wrongful distribution of 36.74 grams of marijuana.  She voluntarily requested discharge in lieu of trial by court-martial and acknowledged that she could receive an under other than honorable conditions discharge.

4.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid 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.  The records contain no indication of procedural or other errors that would tend to jeopardize her rights.

6.  In addition to the applicant's serious offense, she also accepted NJP on two occasions for being absent from her appointed place of duty and wrongfully selling military property.

7.  The applicant's post-service achievements and conduct are noted.  However, good post-service conduct alone is not normally sufficient for upgrading a properly issued discharge.

8.  The ABCMR does not upgrade discharges based solely on the passage of time nor does it correct records solely for the purpose of establishing eligibility for benefits from another agency.  The granting of veterans' benefits is not within the purview of the ABCMR and any questions regarding eligibility for treatment and other benefits should be addressed to the Department of Veterans Affairs.

9.  Based on the foregoing, there is insufficient basis to upgrade the applicant's discharge to honorable or to general under honorable conditions.

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)                                         AR20090017070



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090017070



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1