IN THE CASE OF:	  

		BOARD DATE:	6 July 2010  

		DOCKET NUMBER:  AR20090021530 


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 discharge to honorable.

2.  The applicant states that she injured her back during physical training and was basically confined to quarters.  She started to drink and then take drugs to deal with the boredom and the pain.  This ultimately impaired her judgment and resulted in her discharge.

3.  The applicant provides a copy of her DD Form 214 (Certificate of Discharge or Release from Active Duty) to support 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 enlisted in the Regular Army on 8 September 1992.  She completed basic and advanced individual training as a cook.  She never progressed beyond pay grade E-1.

3.  She was assigned to the support troop of an armored cavalry regiment at Fort Bliss, Texas.  On 5 October 1993, a special court-martial found her guilty of three specifications of failure to go to her appointed place of duty, a 3-day absence without leave (AWOL), willful disobedience of a noncommissioned officer, and wrongful appropriation of an automobile.  She was sentenced to forfeit $500.00 per month for 4 months and confinement for 4 months.

4.  On 14 February 1994, charges were preferred against her for AWOL from 30 November 1993 to 7 February 1994.

5.  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 an under other than honorable conditions discharge, and of the procedures and rights that were available to her.

6.  She requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  The applicant acknowledged she had been advised of and understood her rights under the UCMJ and that she could receive an under other than honorable conditions discharge.

7.  The applicant indicated 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 the request were approved, she could be deprived of many or all Army benefits, that she could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that she could be deprived of her rights and benefits as a veteran under both Federal and State laws.

8.  The separation authority approved the applicant's request for discharge and directed that she be discharged with a characterization of service of under other than honorable conditions.

9.  On 22 June 1994, the applicant was discharged accordingly.  She had completed 1 year, 6 months, and 24 days of creditable active military service and had accrued 80 days of lost time.

10.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of her discharge within its 15-year statute of limitations.

11.  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 at any time after the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate.

12.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for AWOL offenses in excess of 30 days.

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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

14.  Paragraph 3-7b of Army Regulation 635-200 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 states that she injured her back during physical training and was basically confined to quarters.  She started to drink and then take drugs to deal with the boredom and the pain.  This ultimately impaired her judgment and resulted in her discharge.

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

3.  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.

4.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20090021530



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ABCMR Record of Proceedings (cont)                                         AR20090021530



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