IN THE CASE OF:	  

		BOARD DATE:	    12 October 2010

		DOCKET NUMBER:  AR20100010141 


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, upgrade of her under other than honorable conditions (UOTHC) discharge to a general discharge (GD) under honorable conditions and correction of her record to show she was promoted. 

2.  The applicant states:

When I first entered the US Army in 1984, I fell in love with the military.  I did my basic training at Ft. Jackson SC (the old WWII) barracks and I don't have to tell you that it wasn't a picnic, but I survived.  My AIT was at Ft. Lee VA, my [military occupational specialty (MOS)] was 76 Whiskey (Petroleum Supply Specialist).  I didn't have any problems up to that point.  I really don't know what happened, but everything changed when I got stationed in Ft. Irwin, CA [the National Training Center (NTC)].  I will not lie to you, I hated it.  I don't want to forget the point that I NEVER received any rank, which I know should not have happened.  I came in as a private and I left as a private, even after completing Basic Training and AIT successfully.

One thing that really sticks in my mind about FT. Irwin is that the morale of the entire post was very low.  I don't have to tell you that we were in the Mojave Desert, it was about 110 degrees every day and the nearest town was about 40 miles away, and there was a lot of field duty, everybody went to the field at this particular post.  Drug use and alcoholism ran rampant within my company.  And I am not just referring to the enlisted personnel.  The 1st sergeant [sic] got high and did cocaine and so did his clique within the company, whom he made sure he took care of and were always notified before drug testing.  As you can figure out I was not part of this clique.  

I don't want to give you the false impression that I was a stract [sic] troop and never had extra duty or was never restricted to the barracks because this was by no means true.  I came late to formation and was not always where I was supposed to be, but I never came up "dirty" on a drug test.  I got very frustrated and discouraged to see soldiers being promoted that I knew where [sic] getting high and I could still not receive any rank.  

After awhile I was just kind of going through the motions and trying to get through the day to finish my tour until I found out that I was with child, which made things for me even worse.  I went to the doctor who confirmed that I was pregnant.  He gave me a profile to take back to my company commander.  My [commanding officer (CO)] completely disregarded my medical profile and wanted me to take part in [physical training (PT)] every morning, which of course I refused which in turn made matters even worse.  Several times I tried to use my chain of command, but my requests always seemed to be rejected or lost in paperwork.  To make a long story short I went [absent without leave (AWOL)].  

After a few months I returned to Monterey to be discharged and out process.  By this time I was good and pregnant (about 8 months).  At Ft. Ord they wanted me to stay to investigate my case and wanted me to have my child there.  The only thing on my mind was getting away as quickly as possible.  At all cost [sic] I needed my story to be told.  I truly don't feel like I should have received an [under other than honorable conditions] discharge under my circumstances. 

3.  The applicant provides copies of her DD Form 214 (Certificate of Release or Discharge from Active Duty) and her son's Certificate of Live Birth.

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 military record is not available for the Board to review.  This case is being considered using the DD Form 214 provided by the applicant.

3.  The applicant enlisted in the Regular Army (RA) on 1 October 1984 and was trained in and awarded MOS 76W.

4.  The complete facts and circumstances of the applicant's discharge are not available; however, she has provided a properly constituted DD Form 214 showing she was discharged on 14 November 1986 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, in the rank/grade of private/E-1 with a character of service UOTHC.  Item 12h (Effective Date of Pay Grade) shows 1 October 1984.  Item 29 (Dates of Time Lost During this Period) shows time lost from 16 December 1985 to 15 April 1986.  

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

6.  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.  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.

7.  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.

8.  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.
9.  Army Regulation 600-200 (Enlisted Personnel Management), then in effect, stated a Soldier would be advanced to grade E-2 when he or she completed 
6 months of active Federal Service, unless the advancement was stopped by the commander.  The regulation also provided that Soldiers who were to be discharged UOTHC would be reduced to the lowest enlisted grade.

10.  Army Regulation 15-185 (Army Board for Correction of Military Records) states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence does not support the applicant's request for upgrade of her UOTHC discharge or correction of her record to show she was promoted.

2.  The applicant states she was AWOL, an offense punishable under the UCMJ with a punitive discharge.  Separations under the provisions of chapter 10 of Army Regulation 635-200 are voluntary separations.  Although her separation processing paperwork is not available for review with this case, it is presumed that she voluntarily requested discharge from the Army in lieu of trial by court-martial.  

3.  There is no evidence which shows the applicant was not properly and equitably discharged in accordance with the regulations in effect at the time, that all requirements of law and regulations were not met, or the rights of the applicant were not fully protected throughout the separation process.  Absent such evidence, regularity must be presumed in this case.  

4.  Discharges UOTHC require reduction to the lowest enlisted grade; however, in this case it appears the applicant was never advanced beyond pay grade E-1.  Her date of entry into the RA and the effective date of her pay grade are the same, indicating her commander chose to stop her advancement to pay grade 
E-2.  There is no evidence showing the applicant's advancement was improperly stopped.  

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief.





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)                                         AR20100010141





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ABCMR Record of Proceedings (cont)                                         AR20100010141



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