BOARD DATE:	15 June 2010  

		DOCKET NUMBER:  AR20090020598 


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, in effect, that her discharge characterized as under other than honorable conditions (UOTHC) be upgraded.

2.  The applicant states, in effect, that: 

* in November 1993 she was sexually assaulted by a senior NCO
* she reported the incident and went to counseling
* she was "encouraged" by the command sergeant major to drop the charges and she could be transferred anywhere she wanted to go
* she accepted a temporary duty assignment with advance pay
* she left her unit in an unauthorized status for 4 days, which caused her to miss her duty flight
* upon return from AWOL she was advised by her commander that she was being court-martialed 
* she is now married, a mom, working successfully, and attending college.

3.  The applicant provides a copy of medical care documents, a letter of character reference, and an award document in support of her request.

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 that, after having had prior service, she enlisted in the Regular Army on 25 March 1993.  After completing her training she was awarded the military occupational specialty (MOS) 76Y, Unit Supply Specialist.

3.  On 11 February 1994, charges were preferred against the applicant for:   being absent from her unit from on or about 6 February 1994 to on or about      11 February 1994, without authority; missing the movement of her duty flight to Palamaro, Honduras, which was scheduled for 8 February 1994; and wrongfully appropriating money, property of the U.S. Government in the amount of $3,475.00.

4.  On 23 February 1994, the applicant was informed of charges against her and was referred for trial to the special court-martial convened by Court-Martial Order Number 5.

5.  On 15 March 1994, the applicant consulted with counsel and voluntarily requested discharge in lieu of trial by court-martial, for the good of the service, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  In doing so, she acknowledged that she might encounter substantial prejudice in civilian life and might be ineligible for many or all benefits administered by the Department of Veterans Affairs if a UOTHC discharge were issued.  She waived her rights and did not submit a statement in her own behalf.  

6.  On 18 March 1994, the separation authority approved the applicant's voluntary request for discharge and directed that she be separated under other than honorable conditions.  

7.  Item 21 (Time Lost) of the applicant’s DA Form 2-1 (Personnel Qualification Record) shows that she was AWOL from 6 February 1994 through 10 February 1994 for a total of 5 days.

8.  The applicant was discharged on 24 March 1994 in the pay grade of E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  She was furnished a UOTHC discharge. At the time of her discharge, the applicant had 11 months and 25 days of active service, 3 months and 25 days of prior active service and 9 months and 23 days of inactive service, with 5 days of lost time.

9.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.  

10.  Army Regulation 635-200 set forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could, at any time, after the charges had been preferred, submit a request for discharge for the good of the service - in lieu of trial by court-martial.  A UOTHC discharge was normally considered appropriate.  

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.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant went AWOL from on or about on 6 February 1994 and remained so absent until 11 February 1994; missed her required TDY movement of flight and misappropriated U.S. Government funds in the amount of $3,475.00. 

2.  The applicant's voluntary request for separation, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial, appears to have been administratively correct and in conformance with applicable regulations.  There is no indication that the applicant's request for discharge was made under coercion or duress.

3.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of her UOTHC discharge.  The applicant has submitted neither probative evidence nor a convincing argument in support of her request and has not shown error, injustice, or inequity for the relief she now seeks.  

4.  The applicant was appropriately furnished an UOTHC discharge.  She had a total of 11 months and 25 days of creditable service and 5 days of time lost due to being AWOL.
5.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise 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)                                         AR20090020598





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ABCMR Record of Proceedings (cont)                                         AR20090020598



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