IN THE CASE OF:	  

		BOARD DATE:	  12 August 2010

		DOCKET NUMBER:  AR20100007903 


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 her discharge under other than honorable conditions be upgraded to honorable.

2.  The applicant states:

* She was falsely accused of petty larceny
* She was young and chickened out
* She would never take anything from anyone
* She was a squad leader and really loved the military
* She had never been in trouble before and was scared
* She was given the choice of being court-martialed or taking a chapter 10 for the good of the service which gave her a chance to upgrade her discharge after 2 years 

3.  The applicant provides no documentary evidence in support of her 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 was born on 3 February 1962.  She enlisted in the Regular Army on 18 March 1981 for a period of 3 years.  She successfully completed basic and advanced individual training and was awarded military occupational specialty 71L (administrative specialist).

3.  The facts and circumstances surrounding the applicant's discharge are not contained in the available records.  The charge sheet is not available.

4.  On 28 October 1981, the applicant consulted with counsel and requested discharge for the good of the service 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.  She indicated that by submitting her request for discharge she acknowledged she was guilty of a charge against her that authorized the imposition of a bad conduct or dishonorable discharge.  She indicated in her request that she understood she might be discharged under conditions other than honorable and furnished an under other than honorable conditions discharge, that she might be ineligible for many or all benefits administered by the Veterans Administration, that she would be deprived of many or all Army benefits, and that she might be ineligible for many or all benefits as a veteran under both Federal and State laws.  She acknowledged that she might expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  She elected not to make a statement in her own behalf.  

5.  On 29 October 1981, the separation authority approved the applicant's voluntary request for discharge and directed that she be furnished an under other than honorable conditions discharge.

6.  Accordingly, the applicant was discharged under other than honorable conditions on 12 November 1981 under the provisions of Army Regulation 
635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  She had served a total of 7 months and 25 days of creditable active service.

7.  There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

8.  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, 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.

9.  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.

10.  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 she was falsely accused of petty larceny relates to evidentiary and legal matters that could have been addressed and conclusively adjudicated in a court-martial appellate process.  However, the applicant voluntarily requested discharge in lieu of trial by court-martial.  In submitting her request for discharge she was, in effect, admitting she was guilty of the charge.

2.  Age is not a sufficiently mitigating factor.  The applicant was 19 years of age when she enlisted and she completed her training.

3.  In the absence of evidence to the contrary, it must be presumed that the applicant’s separation was administratively correct and in conformance with applicable regulations.  Without having the discharge packet to consider, it is presumed her characterization of service was commensurate with her overall record of service.  As a result, there is no basis for granting the applicant's request.


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)                                         AR20100007903



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)