IN THE CASE OF:	  

		BOARD DATE:	  19 May 2010

		DOCKET NUMBER:  AR20090020282 


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 (UOTHC) discharge.

2.  The applicant states that since her discharge from the military, she has served an exemplary lifestyle along with raising two children by herself.  She contends she has not been in trouble with the law and is respected by her neighbors, friends, employees, and employer.  She adds that she was diagnosed with bipolar disorder while in the military, which still exist now, and whishes to receive medical treatment at the local Veterans Affairs facility.

3.  The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of this 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's record shows she enlisted in the Regular Army on 4 March 2003.  She was trained in and awarded military occupational specialty (MOS) 92A (Automated Logistical Specialist).

3.  The record shows the applicant was advanced to private /E-2 on 4 September 2003, and this is the highest rank she attained while serving on active duty.  It further shows that during her active duty tenure, she earned the National defense Service Medal, Army Service Ribbon, Global War on Terrorism Service Medal, and Army Service Ribbon.  Her record documents no acts of valor or significant achievement.

4.  On 7 February 2004, the applicant departed absent without leave (AWOL).  She remained away for 101 days until returning to military control on 18 May 2004.

5.  A DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from on or about 7 February 2004 to on or about 18 May 2004.

6.  On 24 May 2004, 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 Uniform Code of Military Justice (UCMJ), the possible effects of a UOTHC discharge if her request for discharge were approved, and of the procedures and rights available to her.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service.

7.  In her discharge request, the applicant acknowledged her understanding that by requesting discharge, she was admitting that she was guilty of the charge(s) against her or of a lesser included offense(s) therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.  She further stated that under no circumstances did she desire further rehabilitation, because she had no desire to perform further military service.  She also acknowledged her understanding that she could receive a UOTHC discharge, the possible effects of that discharge which could include being ineligible for many or all benefits administered by the Veterans Administration, that she could be deprived of her rights and benefits as a veteran under both Federal and State laws, and that she could encounter substantial prejudice in civilian life as a result of receiving a UOTHC discharge.
8.  On 8 June 2004, the separation authority approved the applicant's request for discharge and directed she receive a UOTHC discharge and that she be reduced to the lowest enlisted grade.  On 16 June 2004, the applicant was discharged accordingly.

9.  The DD Form 214 issued to the applicant on the date of her discharge shows she completed 1 year and 2 days of creditable active military service and accrued 101 days of lost time due to AWOL.

10.  On 6 February 2008, the Army Discharge Review Board determined the applicant's reason for discharge and characterization of service were both, proper and equitable and denied her request for an upgrade of her discharge.

11.  Army Regulation 635-200 (Personnel Separations) 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, 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.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.

13.  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 discharge should be upgraded because she has served an exemplary lifestyle since her discharge along with raising two children by herself and she is respected in her community has been carefully considered.  While her post-service conduct is noted, these factors are not sufficiently mitigating to support granting the requested relief.  Additionally, the ABCMR does not upgrade discharges solely for making an individual eligible for veterans' benefits.

2.  The evidence of record confirms that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. 
The record shows that after consulting with defense counsel, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  In her request for discharge, she admitted guilt to the charge against her or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The record also shows the applicant voluntarily requested discharge to avoid a court-martial that could have resulted in receiving a punitive discharge.  The UOTHC discharge she received was normal and appropriate under the regulatory guidance.

4.  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 this requirement.

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)                                         AR20090020282



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ABCMR Record of Proceedings (cont)                                         AR20090020282



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