IN THE CASE OF:	  

		BOARD DATE:	28 April 2011

		DOCKET NUMBER:  AR20100023945 


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 her general, under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD) and that the narrative reason for separation be changed.  

2.  The applicant states her discharge was unjust.  She claims she was improperly advised of her rights in connection with her discharge processing and that the charges against her were untruthful. 

3.  The applicant provides no additional evidence in support of 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's record shows she served on active duty in an enlisted status from 16 January 2002 through 13 January 2004, at which time she was honorably discharged in order to accept a commission.  She accepted a direct appointment as a second lieutenant in the United States Army Reserve and entered active duty in that status on 20 April 2004.  

3.  The applicant's record shows she was promoted to captain/0-3 on 
1 September 2006, and that this is the highest grade she attained while serving on active duty.  Her record documents no acts of valor.  It does show she earned the following awards:

* National Defense Service Medal
* Army Achievement Medal
* Army Good Conduct Medal
* Army Service Ribbon
* Global War on Terrorism Service Medal

4.  The record shows court-martial charges were preferred against the applicant for violating the following articles of the Uniform Code of Military Justice (UCMJ) by committing the offenses indicated:

	a.  Article 90 (3 Specifications) of disobeying the lawful commands of three superior commissioned officers (colonel, lieutenant colonel and captain) between 22 June 2006 and 14 July 2006;

	b.  Article 128 (2 Specifications) of committing two separate assaults on 
individuals on 9 March and 22 April 2007; and 

	c.  Article 133 (2 Specifications) of disorderly conduct on 9 March and 
22 April 2007.  

5.  On 30 May 2007, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial; the maximum permissible punishment authorized under the UCMJ; and of the rights available to her.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge in lieu of trial by court-martial.  In her request for discharge, the applicant acknowledged that she understood she could receive an under other than honorable conditions (UOTHC) discharge which could have a significant impact on her eligibility for veterans’ benefits.   



6.  On 25 June 2007, the Deputy Assistant Secretary (Army Review Boards Agency) approved the recommendation of the Ad Hoc Review Board and directed the applicant be discharged UOTHC.  On 20 July 2007, the applicant was discharged accordingly.  

7.  On 14 November 2008, the Army Discharge Review Board (ADRB), after carefully examining the applicant’s record of service, indicated while it did not condone the applicant’s misconduct, it found the characterization of service was too harsh based on the applicant’s length and quality of service, and as a result was inequitable.  Accordingly, the ADRB voted to upgrade the applicant’s characterization of service to general, under honorable conditions.  The ADRB further determined the reason for discharge was proper and equitable and voted not to change it. 

8.  Army Regulation 600-8-24 prescribes the policy and procedures governing the transfer and discharge of Army officer personnel.  Chapter 3 outlines the rules for processing requests for resignation for the good of the service in lieu of trial by court-martial.  An officer separated under this paragraph normally receives characterization of service of Under Other Than Honorable Conditions. 

9.  Army Regulation 600-8-24 states an officer will normally receive an honorable characterization of service when the quality of the officer's service has met the standards of acceptable conduct and performance of duty for an officer.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention the characterization of her discharge should be upgraded to honorable and the reason for her discharge changed because it was unjust has been carefully considered.  However, the evidence does not support this claim.

2.  The evidence of record confirms the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  It also shows that after consulting with defense counsel, the applicant voluntarily requested discharge in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The ADRB elected to upgrade the characterization of the applicant’s discharge based on the overall length and quality of her service; however, it stipulated it did not condone the applicant’s misconduct and that it found the authority and reason for discharge were proper and equitable and, therefore, voted not to change the reason for discharge.  
4.  The ADRB’s decision to upgrade the character of the applicant’s discharge based on the overall quality of the applicant's service is neither accepted nor disputed.  However, the ADRB’s conclusion that the authority and reason for her discharge were proper and equitable is fully accepted.  Therefore, absent any evidence of record corroborating the applicant’s claim her discharge was unjust; there is an insufficient evidentiary basis to support granting the 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 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)                                         AR20100023386



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ABCMR Record of Proceedings (cont)                                         AR20100023945



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