IN THE CASE OF:	  

		BOARD DATE:	    13 May 2010

		DOCKET NUMBER:  AR20090019114 


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 an upgrade of her under other than honorable conditions discharge to honorable.

2.  The applicant states the incident which led to her discharge was one isolated event.  She has been involved in no other incidents.  

3.  The applicant provides five letters of support. 

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 12 June 1979.  She was trained in and awarded military occupational specialty 71L (Administrative Specialist).  

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows, on 
31 July 1984, she was assigned to the 26th Postal Detachment as a postal clerk. 

4.  The record shows, on 2 October 1985, the applicant was charged with stealing $15 on or about 31 July 1985 and $20 on or about 16 September 1985. 

5.  On 2 October 1985, the applicant's immediate commander forwarded court-martial charges against the applicant, recommending trial by special court-martial empowered to adjudge a bad conduct discharge.

6.  A Disposition Form shows, on 10 October 1985, the applicant voluntarily requested discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel). because of the charges preferred against her.  The form shows prior to submitting her request, the applicant consulted with legal counsel and was advised of the nature of her rights under the Uniform Code of Military Justice (UCMJ), the elements of the offenses with which she had been charged, and of the procedures and rights that were available to her.  The record does not include the applicant's signature on her voluntary request for discharge.  

7.  In her voluntary request for discharge, the applicant indicated that she understood by requesting discharge she was admitting guilt to the charge against her or of a lesser included offense and the imposition of an under other than honorable conditions discharge was authorized.  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, and that she could be deprived of her rights and benefits as a veteran under both Federal and State law.  

8.  On 18 October 1985, a Staff Judge Advocate recommended approval of the applicant's request for discharge with the issuance of an under other than honorable conditions discharge.  

9.  On 18 October 1985, the separation authority approved the applicant's request for discharge and directed that she be issued a DD Form 794A (Under Other than Honorable Conditions Discharge Certificate).  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows, on 12 November 1985, the applicant was discharged accordingly with an under other than honorable conditions characterization of service.  She completed a total of 
6 years, 5 months, and 1 day of creditable active military service.

10.  On 20 August 1987, the Army Discharge Review Board denied the applicant's petition to upgrade her discharge.
11.  The applicant provides five letters of support commending her work ethic and character.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides 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 or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

13.  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 (emphasis added) or is otherwise so meritorious that any other characterization would be clearly inappropriate.

14.  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's contention that her under other than honorable conditions discharge should be upgraded to an honorable discharge was carefully considered and her contention is not supported by the evidence.  

2.  The applicant's record shows she was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  Although the record does not show her signature on her voluntary request for discharge, the evidence does include a properly constituted DD Form 214 containing the authority and reason for her active duty discharge.  The applicant authenticated this document with her signature in item 21 (Signature of Person Being Separated).


3.  Based on her record of indiscipline, which includes commission of two offenses punishable under the UCMJ, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders her service unsatisfactory.  Therefore, the applicant is not entitled to either a general or an honorable discharge.

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)                                         AR20090019114



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ABCMR Record of Proceedings (cont)                                         AR20090019114



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