IN THE CASE OF:	  

		BOARD DATE:	  5 October 2010

		DOCKET NUMBER:  AR20100010884 


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 discharge be upgraded.

2.  The applicant states she was discharged because she stated that she couldn't shoot anybody when she was given a rifle during training.  Her drill sergeant pointed to the door and said leave.  She didn't know she was getting an under other than honorable conditions (UOTHC) discharge or that she could request an upgrade.

3.  The applicant provides a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty). 

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 U.S. Army Reserve, under the Delayed Entry Program, on 27 May 1981 and entered initial active duty for training on                9 September 1981.

3.  On 24 September 1981, she went absent without leave (AWOL) and remained so until on or about 13 July 1982,  an period of 313 days.

4.  On 23 July 1982, after consulting with counsel and being advised of her rights and options, the applicant submitted a formal request, under the provisions of Army Regulation 635-200, chapter 10, for discharge for the good of the service (in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge).  She acknowledged that she was guilty of the charges or lesser included charges and that, if the request was accepted, she could receive a discharge under other than honorable conditions and be furnished an UOTHC Discharge Certificate.  She acknowledged that such a discharge would deprive her of many or all of her benefits as a veteran, and that she could expect to experience substantial prejudice in civilian life if she received a UOTHC discharge.

5.  The court-martial convening authority approved the separation request and directed she be separated UOTHC.

6.  The applicant was discharged on 16 September 1982 with a UOTHC discharge.

7.  Army Regulation 635-200 sets forth the policies and procedures for enlisted personnel separations.  It provides the following information:

	a.  paragraph 3-7a states that an honorable discharge (HD) is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty;  

	b.  paragraph 3-7b states that a general discharge (GD) is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge;  

	c.  paragraph 3-7c states that a UOTHC discharge is issued when there is one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier; 


	d.  paragraph 3-7c(7) specifically addresses issuance of a UOTHC for discharges issued under the provisions of chapter 10 of this regulation; and

	e.  Chapter 10 provides 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 trial by court-martial.  A discharge UOTHC is normally considered appropriate.  

8.  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 offenses under Article 86, for periods of AWOL in excess of 30 days.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states she was discharged because she stated that she couldn't shoot anybody when she was given a rifle during training.  Her drill sergeant pointed to the door and said leave.  She didn't know she was getting a UOTHC discharge or that she could request an upgrade.

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, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

3.  The applicant's statement that she did not know that she would be receiving a UOTHC is belied by the fact that she specifically requested discharge in lieu of trial by court-martial and signed the request that specifically identifies this type of discharge. 

4.  The applicant served on active duty for less than three months and that service was devoid of any evidence of significant redeeming factors.

5.  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 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)                                         AR20100010884





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ABCMR Record of Proceedings (cont)                                         AR20100010884



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