BOARD DATE:	  11 January 2011

		DOCKET NUMBER:  AR20100018662 


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 under other than honorable conditions be upgraded to a general discharge.

2.  The applicant states that she was accused of being absent without leave (AWOL) when in actuality she had gone on leave for a death in the family and could not afford to get back to her duty station.  She further states that it was her only infraction and that she had planned on making the military a career.

3.  The applicant provides no additional documents with her application.

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 was born on 5 September 1964 and enlisted in the Regular Army in Atlanta, Georgia on 4 February 1986 for a period of 4 years and training as a small arms repairer.

3.  She completed her basic training at Fort McClellan, Alabama and her advanced individual training at Aberdeen Proving Ground, Maryland before being transferred to Fort Bragg, North Carolina on 7 July 1986 for her first and only duty assignment.

4.  On 15 December 1986 nonjudicial punishment was imposed against her for failure to go to her place of duty.

5.  On 5 January 1987, the applicant’s duty status was changed from present for duty to AWOL.  She remained absent in desertion until she was apprehended by civil authorities in Athens, Georgia on 14 April 1987 and was returned to military control at Fort Knox, Kentucky where charges were preferred against her on 16 April 1987 for the AWOL offense.

6.  On 17 April 1987, 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 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 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 she understood she could receive a discharge under other than honorable conditions and she might be deprived of all benefits as a result of such a discharge.  She further declined to submit a statement or explanation in her own behalf.

7.  The appropriate authority approved her request on 27 April 1987 and directed that the applicant be discharged under other than honorable conditions.

8.  Accordingly, she was discharged under other than honorable conditions on 29 May 1987 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  She had served 1 year and 17 days of total active service and had 99 days of lost time due to AWOL.

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

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions is normally considered appropriate.

11.  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.  The applicant's contentions have been noted and appear to be without merit.  The evidence of record shows that the applicant’s duty status changed from present for duty to AWOL and not from leave to AWOL as she contends.

2.  Additionally, it is noted that she was stationed at Fort Bragg, North Carolina and she was apprehended in Athens, Georgia, approximately 325 miles away; however, she contends that in over 3 months she could not afford to get back to her duty station, which appears to be a most unlikely scenario.

3.  In any event, after being afforded the opportunity to assert her innocence before a trial by court-martial, she voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on her records.  In doing so she admitted guilt to the charges against her.

4.  The applicant offered no mitigating circumstances to explain her absence at the time she was apprehended or when she submitted her request for discharge and her explanation to the Board is not supported by either the evidence submitted with her application or the evidence of record.  Her record of service simply does not rise to the level of a general discharge.

5.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

6.  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 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)                                         AR20100018662





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ABCMR Record of Proceedings (cont)                                         AR20100018662



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