IN THE CASE OF:	  

		BOARD DATE:	  29 June 2010

		DOCKET NUMBER:  AR20090018995 


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 other than honorable conditions discharge to an honorable discharge
* restoration of her rank to sergeant (SGT)/E-5
* placement on the retired list

2.  The applicant states, in effect, that she informed her chain of command of the removal of monies prior to charges against her for misappropriation.  She left an "IOU" and her intent was never to steal the money.  The applicant states the money was not discovered missing by an audit; only when she informed her chain of command.

3.  The applicant continues that she was not read her rights by her chain of command prior her interview with the U.S. Army Criminal Investigation Command (USACIDC, also known as CID) and without a confession, it would have made the case against her difficult to prove.  The applicant states that she repaid the entire $992.00 prior to any charges brought against her.

4.  The applicant states that she was ill-advised by her attorney to accept the chapter 10 discharge [for the good of the service - in lieu of court-martial] because he was wrapped up in a murder trial.  The applicant states her attorney informed her that the only way she would not go to jail and remain free to raise her children was to take the discharge.  She feels the attorney coerced her and gave her bad advice.
5.  The applicant provides her DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 4 January 1990 and six pages from her separation proceedings.

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 22 July 1971 and successfully completed basic combat and advanced individual training.  She was awarded military occupational specialty 91E (Dental Specialist).  The highest rank she obtained on active duty was SGT/E-5.

3.  The applicant's court-martial charge sheet is not available for review.  However, evidence shows on 19 October 1989 charges were preferred against her for one specification of wrongful appropriation and one specification of dereliction of duty.

4.  On 2 November 1989, after consulting with counsel, the applicant submitted a request for discharge under the provisions of Army Regulation 635-200 ((Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of court-martial.  The applicant indicated in her request that she understood she could be discharged under other than honorable conditions, that she will be deprived of many or all Army benefits, that she may be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that she may be deprived of her rights and benefits as a veteran under both Federal and State law.  The applicant elected to make a statement in her own behalf.

5.  The applicant stated that she was requesting a chapter 10 discharge rather than face a special court-martial after being charged with taking money from the clinic safe.  The loss was not discovered through an audit, she had informed her chain of command of what she had done and that she was charged after informing them.  The applicant further stated that she had paid the money back on 5 September 1989.  The applicant stated she realized the seriousness of her offenses and was very sorry for what she had done.

6.  On 27 November 1989, the appropriate authority approved the request for discharge under the provisions of Army Regulation 635-200, chapter 10 and directed that the applicant be furnished an under other than honorable conditions discharge.  He also directed that the applicant be reduced to the lowest enlisted grade.

7.  On 4 January 1990, the applicant was discharged accordingly and reduced to the rank/grade of private (PV1)/E-1.  She had completed 18 years, 5 months, and 14 days of creditable active service with no time lost.

8.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions), the version in effect at the time, stated that when the separation authority determines a Soldier is to be discharged from the service under other than honorable conditions, the Soldier will be reduced to the lowest enlisted grade.

9.  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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. An under other than honorable conditions discharge is normally considered appropriate.

10.  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.

11.  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.
12.  Army Regulation 635-200, paragraph 12-4, provides that a Soldier who has completed 20, but less than 30 years of active federal service in the U.S. Armed Forces may be retired at his or her request.  The Soldier must have completed all required service obligations at the time of retirement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her military attorney coerced and ill-advised her prior to her discharge.  Records show that a competent counsel properly advised her and that she fully understood the consequences of the discharge that she requested.  If she had concerns about being coerced or ill-advised by counsel, she could have addressed those concerns with her counsel or by the statement with her discharge request; however, she elected not to do so.  Therefore, there is no basis for this argument.

2.  In regard to restoring the applicant's rank to SGT/E-5, Army Regulation
600-8-19 specifically states when the separation authority determines that a Soldier is to be discharged from the service under other than honorable conditions, the Soldier will be reduced to the lowest enlisted grade.  Evidence shows that the approving authority directed that she be reduced to the lowest enlisted grade.  Therefore, the applicant's rank/grade of PV1/E-1 at the time of her separation appears to be correct.

3.  Evidence of record shows the applicant had 18 years, 5 months, and 14 days of creditable active service.  She did not complete 20 years of active federal service in the U.S. Armed Forces to be eligible to retire.  Therefore, there is no basis for this argument.

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.  Evidence of record shows she understood she could receive an under other than honorable conditions discharge.

5.  Evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  Lacking evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

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)                                         AR20090018995



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ABCMR Record of Proceedings (cont)                                         AR20090018995



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