IN THE CASE OF:	  

		BOARD DATE:	  14 April 2011

		DOCKET NUMBER:  AR20100023609


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 she would like to re-enter the military.  She states she made a mistake a long time ago.  In effect, she has grown and matured in the intervening years.

3.  The applicant provides:

* two State of Alabama Employee Performance Preappraisals
* a State of Alabama Employee Performance Appraisal
* a State of Alabama Position Classification Questionnaire
* her résumé
* her Troy University transcripts

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 (USAR) Delayed Entry Program (DEP) for 8 years on 30 October 1992.  On 19 July 1993, she was discharged from the DEP and on 20 July 1983 she enlisted in the Regular Army for 6 years.

3.  She completed Basic Training at Fort Leonard Wood, MO and she was transferred to Fort Sam Houston, TX for Advanced Individual Training (AIT) in military occupational specialty (MOS) 91Y (Eye Specialist).

4.  She reported for AIT on or about 20 September 1993.  She did not complete her training.

5.  On 6 November 1993, she stole a fellow Soldier's wallet containing travelers checks valued at $450.00.  She was apprehended by Military Police and charged with larceny.

6.  On 6 December 1993, court-martial charges were preferred against her for violation of Article 121 (larceny and wrongful appropriation) of the Uniform Code of Military Justice (UCMJ).

7.  On 9 December 1993, having consulting with legal counsel, she 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.  In so doing, she acknowledged that she was guilty of the charge against her, a charge which authorized the imposition of a bad conduct or dishonorable discharge.  She also stated that she had no desire for rehabilitation or further military service and that she understood the nature and consequences of a discharge under conditions other than honorable that she might receive.  She declined to submit a statement in her own behalf.

8.  On 13 January 1994, the approving authority approved the applicant's request for discharge for the good of the service - in lieu of trial by court-martial and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  The applicant was discharged accordingly on 21 January 1994.


9.  As a result, the applicant's DD Form 214 shows she was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial with an under other than honorable conditions discharge.

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 provides guidance on characterization of service and states in:

	a.  paragraph 3-7 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.

	b.  paragraph 3-7b 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 committed a serious offense when she stole a fellow Soldier's wallet containing travelers checks valued at $450.00.  She faced trial by a special court-martial empowered to adjudge a bad conduct discharge.

2.  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.  There is no indication that the request was made under coercion or duress.  Her request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show she wished to avoid the court-martial and the punitive discharge that she might have received.

3.  The applicant has done well for herself in the years since her discharge.  She has been gainfully employed and she has almost completed her undergraduate degree.  She is commended for her good post-service conduct; however, that conduct is not sufficient to overcome the seriousness of the offense with which she was charged, and does not warrant a discharge upgrade to a general or an honorable discharge.

4.  In lieu of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20100023609



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ABCMR Record of Proceedings (cont)                                         AR20100023609



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