BOARD DATE:	  9 November 2010

		DOCKET NUMBER:  AR20100013347 


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.

2.  The applicant states, in effect, she was told by her superiors that she would be separated for medical reasons based on her medical condition (phlebitis) and her inability to wear combat boots as a result of this condition.  She states that she never intended to be absent without leave (AWOL) or a deserter, or not fulfill her enlistment obligation.  She further states the chaplain knew her family member was dying.

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's record shows she enlisted in the U.S. Army Reserve (USAR) on 21 January 1980 for a period of 6 years, at the age of 19.  She was immediately ordered to Initial Active Duty for Training with a reporting date of
22 January 1980 to Fort Jackson, SC for basic training, followed by reassignment to Fort Gordon, GA for advanced individual training.  Records show she completed her training and she was awarded military occupational specialty 72E (combat telecommunications center operator).  The highest rank/grade she attained while serving on active duty was private (PV1)/E1.

3.  On 1 April 1980, the applicant was reported AWOL.  On 16 November 1981, she surrendered to military authorities at Fort Ord, CA.  

4.  On 1 March 1982, the applicant was again reported AWOL.  On 1 March 1983, she surrendered to military authorities at Fort Ord.

5.  On 7 March 1983, charges were preferred against the applicant for being AWOL during the periods 1 April 1980 to 16 November 1981 and 1 March 1982 to 1 March 1983.

6.  On 9 March 1983, 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 this legal counsel, the applicant voluntarily requested discharge 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.

7.  In her request for discharge, she indicated she understood that by requesting discharge, she was admitting guilt to the charge 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 discharge 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 Veterans Administration, and that she could be deprived of her rights and benefits as a veteran under both Federal and State law. 

8.  In the applicant's personal statement that was submitted with her request for discharge, she stated that her medical condition (phlebitis) was worsened by her service in the Army.  She states that she unsuccessfully attempted to be medically discharged prior to going AWOL.  Finally, she states that she was a good Soldier who gave 110% when she wasn't AWOL.

9.  On 29 April 1983, the separation authority approved the applicant's request for discharge and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  On 13 May 1983, the applicant was discharged accordingly.  The applicant's DD Form 214 confirms she completed 8 months and 3 days of total active service time lost from 1 April 1980 - 15 November 1981 and from 1 March 1982 - 28 February 1983, which equates to 2 years,
7 months, and 15 days.

10.  There is no evidence of records or any evidence provided by the applicant which indicates she would be separated for medical reasons, that her condition was waived for enlistment and rendered her medically unfit for continued service, that she was treated improperly by a commissioned officer, or that her chaplain knew of the impending death of her family member.

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

12.  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.

13.  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.

14.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR).  Paragraph 2-9 contains guidance on the burden of proof.  It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that her discharge should be upgraded was carefully considered; however, there is insufficient evidence to support this request.

2.  The applicant's record is void of any evidence, and she has not provided any evidence, of any specific medical condition that would have rendered her unfit for continued service, thus warranting a medical discharge. 
 
3.  The applicant's record shows she was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.

4.  Evidence shows she was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would tend to jeopardize her rights.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  The applicant's discharge accurately reflects her overall record of service.

5.  Based on her record of indiscipline, including 2 years, 7 months, and 15 days of time lost due to being AWOL, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered her service unsatisfactory.  Therefore, she is not entitled to 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)                                         AR20100014558



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ABCMR Record of Proceedings (cont)                                         AR20100013347



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