IN THE CASE OF:	  

		BOARD DATE:	  13 April 2010

		DOCKET NUMBER:  AR20090017812 


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 upgrade of her under other than honorable conditions discharge to a general, under honorable conditions discharge.

2.  The applicant states that she had returned home from Germany in October 1981.  Her grandfather was going to have his leg amputated.  This was a stressful time.  While home she took a home pregnancy test.  The results were positive.  Because of the stress of her grandfather's surgery and having to be put into a nursing home, she could not tell her parents about the pregnancy.  Instead of going back to Germany, she went to Clarksville, TN to stay with a friend.  She was very scared and did not know what to do.  She talked to a noncommissioned officer at Fort Campbell, KY who advised her to return to the military and tell them she was pregnant.  She took the advice and accepted a discharge under other than honorable conditions.  After another 1 1/2 years, she went back home to her parents.  She never told her parents what really happened.

3.  In 2002, the applicant's father died and was buried in the Veterans Memorial Cemetery in Randolph, VT.  Her mother told her that she also should be buried there since she had done her time in the military service.  That was when she told her mother what really happened.  In 2005 the applicant's mother died and is now buried beside the applicant's father.

4.  The applicant further states that she is now a single mother with an 8-year old daughter.  The applicant would very much like to be buried beside her parents so that later her daughter will be able to visit her mother and grandparents at the same location and to always know that being in the service is a good thing and an honorable experience.

5.  The applicant provides copies of her DD Form 214 (Certificate of Release or Discharge from Active Duty), DD Form 794A (Under Other Than Honorable Conditions Discharge Certificate), Standard Form (SF) 180 (Request Pertaining to Military Records), and VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative).

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests upgrade of the applicant's characterization of service to general, under honorable conditions for the good of the service.

2.  Counsel states that the applicant served on active duty from 29 January 1980 through 28 January 1982.

3.  Counsel provides no additional documentation in support of the 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.  On 29 January 1980, the applicant enlisted in the Regular Army.  She completed her initial training and was awarded military occupational specialty (MOS) 63B (Light Wheel Vehicle Mechanic).  She was subsequently assigned to Fort Campbell.

3.  On 29 January 1981, the applicant was advanced to the rank/grade of private first class (PFC)/E-3.

4.  On 7 July 1981, the applicant departed Fort Campbell for duty in the Federal Republic of Germany, where she was assigned to the 708th Maintenance Battalion.

5.  On 3 December 1981, charges were preferred against the applicant under the Uniform Code of Military Justice (UCMJ) in violation of Article 86 for being absent without leave (AWOL), during the period from on or about 10 October 1981 to on or about 1 December 1981 (52 days).

6.  On 4 December 1981, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to her.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service, in lieu of trial by court-martial.

7.  In her request for discharge, the applicant indicated that she understood that by requesting discharge, she was admitting guilt to the charge against her, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  She further 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 Veterans Administration (VA), and that she could be deprived of her rights and benefits as a veteran under both Federal and State law.

8.  On 6 January 1982, the separation authority approved the applicant’s request for discharge and directed that she be discharged under other than honorable conditions.  On 28 January 1982, the applicant was discharged accordingly.  She had completed a total of 1 year, 10 months, and 9 days of creditable active military service and had 52 days of time lost due to AWOL.

9.  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.

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 trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

11.   Under the UCMJ, the maximum punishment allowed for violation of Article 86, for AWOL of more than 30 days is a dishonorable discharge and confinement for 1 year.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her under other than honorable conditions discharge should be upgraded to general, under honorable conditions so she may be buried beside her parents.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The applicant's desire to obtain veterans burial benefits is not justification for an upgrade of her discharge.

4.  The applicant's lost time rendered her service unsatisfactory.  Therefore, she is not entitled to an upgrade of her discharge.

5.  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 the aforementioned requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's requested relief.





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)                                         AR20090017812



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ABCMR Record of Proceedings (cont)                                         AR20090017812



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