IN THE CASE OF:	  

		BOARD DATE:	  26 October 2010

		DOCKET NUMBER:  AR20100013258 


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 upgrade of her under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states, in effect:

* she had marital problems at the time which contributed to her going absent without leave (AWOL)
* she knew her reasons were not good, but she was "at the end of her rope"
* she received no help from her chain of command
* she felt her problems were overlooked and she should have been helped somehow
* she claims she was an outstanding Soldier prior to going AWOL
* she is currently attending college on-line in order to further her career and to enable her to start a business from her home

3.  The applicant provides a copy of her Colorado Technical University Student Class Schedule, dated 29 March 2010.

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 7 February 1978 for 3 years.  She completed basic and advanced individual training and she was awarded military occupational specialty 67N (Utility Helicopter Repairer).  She continued to serve on active duty through reenlistments.

3.  Her DA Form 2-1 (Personnel Qualification Record) contains the following information:

	a.  item 9 (Awards, Decorations, and Campaigns) shows the:

* Aircraft Crewman Badge
* Army Service Ribbon
* Overseas Service Ribbon (2nd award)
* Army Good Conduct Medal (1st award)
* Army Commendation Medal
* National Defense Service Medal
* Noncommissioned Officer Professional Development Ribbon
* Marksman Marksmanship Qualification Badge with Rifle Bar
* Expert Marksmanship Qualification Badge with Grenade Bar

	b.  item 33 (Appointments and Reductions) shows:

* Private  (PV1)/E-1						7 February 1978
* Private (PV2)/E-2						7 August 1978
* Private First Class (PFC)/E3			1 January 1979
* PV2/E2								    22 February 1979
* PFC/E3									1 August 1979
* Specialist Four (SP4)/E4				1 November 1979
* Sergeant SGT/E-5						6 June 1981
* SP4/E-4									1 June 1983

4.  The applicant's DD Forms 458 (Charge Sheet), dated 28 May 1987 and 17 September 1992, show she was charged with being AWOL during the following periods:

* from on or about 30 April 1987 to on or about 17 February 1990
* from on or about 22 March 1990 to on or about 21 July 1992

5.  On 18 September 1992, the applicant consulted with legal counsel and she was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to her.  Subsequent to receiving legal counsel, the applicant voluntarily requested discharge for the good of the service - in lieu of trial by court-martial.

6.  In her request for discharge, the applicant acknowledged she understood by requesting a discharge she was admitting guilt to the charges against her or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  She further acknowledged she understood that if her request was approved she could be deprived of many or all Army benefits, that she could be ineligible for many or all benefits administered by the Department of Veterans Affairs (DVA), and that she could be deprived of her rights and benefits as a veteran under both Federal and State laws.

7.  On 22 October 1992, the separation authority approved the applicant's request and directed her separation under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial, with an under other than honorable conditions discharge and reduction to the lowest enlisted grade.  On
10 November 1992, the applicant was discharged accordingly.  The DD Form 214 she was issued confirms she completed a 9 years, 11 months, and 23 days of total active service with 1,331 days of lost time.

8.  Her record is void of any evidence and she has not provided any evidence that shows she raised any marriage-related incidents or problems through her chain of command or any other available support agency.

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


10.  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.

11.  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.

12.  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.  There is no evidence in the applicant's official record and nor did she submit any evidence that shows she reported any marital problems or that she sought help from her chain of command for her problems.

2.  She voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid a trial by court-martial.  She acknowledged she understood that she could be ineligible for many or all benefits administered by the VA and that she could be deprived of her rights and benefits as a veteran under both Federal and State laws.  There is no indication that the request was made under coercion or duress.

3.  It is commendable that she has enrolled in college since her discharge.  However her post-service achievements have no bearing on her conduct while she was serving on active duty.

4.  Evidence of record shows that prior to the AWOL incidents, her military record was satisfactory, as evidenced by her receipt of awards for service and promotion to SGT/E-5 during her period of service; but not sufficiently meritorious to warrant an upgrade of her discharge.

5.  The applicant’s record of indiscipline includes 1,331 days of time lost due to AWOL and civilian confinement.  As a result, her service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Her misconduct also renders her service unsatisfactory.  Therefore, she is not entitled to an upgrade of her discharge to either an honorable or a general discharge.

6.  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)                                         AR20100013258



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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