IN THE CASE OF:	  

		BOARD DATE:	  14 September 2010

		DOCKET NUMBER:  AR20100009328 


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 that her general discharge under honorable conditions be upgraded to honorable.

2.  The applicant states she joined the U.S. Army to serve her country.  She successfully completed basic combat training and advanced individual training and was in the process of transferring to her first permanent duty assignment when she was harassed by the staff and was subsequently released from the military in a fragile state.

3.  The applicant provides no additional documentation in support of her application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, consideration of the applicant's request for an upgrade of her general discharge to honorable.  Counsel further requests to be appropriately informed of all actions taken in this case.

2.  Counsel makes no statement.

3.  Counsel provides no additional documentation 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.  On 15 September 1996, the applicant enlisted in the Regular Army.  She completed her initial training and was awarded military occupational specialty 31L (Wire Systems Installer).

3.  On 16 July 1997, the following charges were preferred under the Uniform Code of Military Justice for the violations indicated [Note: There is no Charge IV listed - May have been a numbering error.]:

	a.  Charge I: Violation of Article 83 for fraudulent enlistment by concealing prior bad acts;

	b.  Charge II: Violation of Article 86 for failure to go to physical training formation;

	c.  Charge III (two specifications): Violation of Article 90 for twice disobeying a lawful command from a commissioned officer;

	d.  Charge V (two specifications): Violation of Article 91 for disobeying a lawful order and being disrespectful in language towards a noncommissioned officer;

	e.  Charge VI: Violation of Article 92 for wrongful possession of alcohol in the barracks;

	f.  Charge VII: Violation of Article 128 for assaulting another Soldier by scratching and pulling hair;

	g.  Charge VIII (three specifications):  Violation of Article 134 for being drunk and disorderly, incapacitation due to previous overindulgence in intoxicating liquor for the proper performance of duties, and breaking restriction.

4.  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 UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to her.

5.  After consulting with counsel and being advised of her rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  In her request for discharge, the applicant indicated that she understood that by requesting discharge, she was admitting guilt to the charges against her, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  She acknowledged she understood that if her discharge request was approved, she could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that she could be deprived of her rights and benefits as a veteran under both Federal and State law.

6.  On 17 July 1997, the separation authority approved the applicant’s request for discharge and directed that she be given an Under Other Than Honorable Conditions (UOTHC) discharge.  On 23 July 1997, the applicant was discharged accordingly.  She had completed a total of 10 months and 9 days of creditable active duty service.

7.  On 31 October 2003, the Army Discharge Review Board (ADRB) considered the applicant's request for an upgrade of his discharge.  Based on the applicant's presentation of sufficiently mitigating evidence, the ADRB determined that the circumstances of her case warranted an upgrade of her characterization of service to general, under honorable conditions.  However, it also determined that the applicant's misconduct had diminished the quality of her service below that meriting a fully honorable discharge.  Furthermore, the ADRB determined that the narrative reason for her discharge was proper and equitable.  As a result of the ADRB decision, her rank was restored to private, pay grade E-2, and a new DD Form 214 was accordingly issued.

8.  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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

9.  Under the UCMJ, the maximum punishment allowed for each violation of Articles 83, 90, 91, 92, and 128, as charged in the applicant's case, included a punitive discharge.

10.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her general discharge under honorable conditions should be upgraded to honorable.

2.  The ADRB determined that the circumstances of the applicant's discharge warranted an upgrade of her characterization of service to general, under honorable conditions but that her misconduct had diminished the quality of her service below that meriting a fully honorable discharge.

3.  The applicant has not provided any new documentary evidence or offered sufficiently convincing argument warranting any further upgrade in the characterization of her discharge.

4.  In view of the above, 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)                                         AR20100009328





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ABCMR Record of Proceedings (cont)                                         AR20100009328



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