IN THE CASE OF:	  

		BOARD DATE:	  30 September 2010

		DOCKET NUMBER:  AR20100011408 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show she was honorably discharged.

2.  The applicant states, in effect, she was honorably discharged in June 1980; however, when she tried to apply for benefits she was told that she was discharged under other than honorable conditions via a court-martial.  However, that is not true.  She goes on to state that she never had any trouble and was honorably discharged.  She needs this error corrected and her benefits reinstated.

3.  The applicant provides a copy of her DD Form 214.

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 26 April 1977 for a period of 4 years and training as a personnel management specialist.  She completed her basic training at Fort McClellan, Alabama and her advanced individual training at Fort Benjamin Harrison, Indiana before being assigned to the Military Personnel Center (MILPERCEN) in Alexandria, Virginia on 16 September 1977.  She was advanced to the pay grade of E-3 on 5 December 1977.

3.  On 27 July 1978, the applicant went absent without leave (AWOL) and remained absent in a desertion status until she surrendered to military authorities in Knoxville, Tennessee on 9 March 1980 and was transferred to Fort Knox, Kentucky, where charges were preferred against her for the AWOL offense. 

4.  On 19 March 1980, after consulting with defense counsel, the applicant submitted a request for discharge for the good of the service, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by             court-martial.  In her request she indicated that she was making the request of her own free will without coercion from anyone and that she was aware of the implications attached to her request.  She also admitted that she was guilty of the charges against her or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  She acknowledged that she understood she could receive a discharge under other than honorable conditions and that she might be deprived of all benefits as a result of such a discharge.  She also elected to submit a statement in her own behalf wherein she stated that she had joined the Army because she was shy and had hoped the Army would help her grow out of it.  She went on to state that she now had a baby who was less than a month old and she desired to be discharged so that she could start her life over with her baby. 

5.  The appropriate authority approved her request on 4 April 1980 and directed that she be discharged under other than honorable conditions.

6.  Accordingly, on 2 June 1980, while on excess leave status, she was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  She had served 1 year, 5 months, and 21 days of total active service and she had 595 days of lost time due to being AWOL.


7.  There is no indication in the available records to show that she ever applied to the Army Discharge Review Board for an upgrade of her discharge within that board’s 15-year statute of limitations.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against them or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and they must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive.  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 (emphasis added), 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that her DD Form 214 should be corrected to show that she was honorably discharged has been considered and found to lack merit.

2.  The evidence of record clearly shows the applicant requested a discharge in lieu of trial by court-martial fully knowing she was subject to receive a discharge under other than honorable conditions.

3.  Additionally, the applicant has failed to provide sufficient evidence to establish that she was ever discharged honorably or that she was ever informed in writing that she would receive an honorable discharge.  

4.  Accordingly, her discharge and the reasons therefore appear to be appropriate under the circumstances and appropriately reflect her service during the period in question.

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)                                         AR20100011408



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ABCMR Record of Proceedings (cont)                                         AR20100011408



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