IN THE CASE OF:	  

		BOARD DATE:	  10 May 2011

		DOCKET NUMBER:  AR20100025846 


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 left her duty station without permission but three factors prevented her from being discharged the correct way
* At the time she was under physical and mental duress
* She did attempt to terminate her service from the Army but she was unable to find anyone who would help her
* She wanted to separate from the service because her mother was gravely ill and did eventually pass away, and she was unmarried and pregnant with no one to take care of her child if she was deployed
* When she finally turned herself in she had a change of heart and she wanted to stay in the Army, but she was without anyone to appoint as a guardian if she was deployed
* She left her duty station in December 1989 after only being in the Army since June 1989
* In September 1990 she turned herself in just before having her child
* She believes had she not been under physical and mental duress she would not have made the mistake of leaving the Army under those circumstances 


3.  The applicant provides 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.  She enlisted in the Regular Army on 21 June 1989 for a period of 3 years.  She completed her training and she was awarded military occupational specialty 52D (power generation equipment repairer).

3.  She went absent without leave (AWOL) on 21 December 1989 and she returned to military control on 14 September 1990.

4.  A DA Form 4187 (Disposition Form), dated 24 October 1990, shows she went into labor on 1 October 1990 and she was admitted to the Jacksonville Naval Regional Medical Center, Jacksonville, FL.

5.  On 17 December 1990, she signed a Medical Examination for Separation/
Retirement Statement of Option which states, "I understand that I am not required to undergo a medical examination for separation from active duty.  If I elect not to undergo a separation examination, I also understand that my medical records will be reviewed by a physician at the appropriate medical treatment facility; and if the review indicates that an examination should be accomplished, I will be scheduled for examination based on the results of the review.  I do not desire a separation medical examination."  Apparently, her medical records were reviewed by competent medical authorities and it was determined that a medical examination for separation was not required.



6.  Charges were preferred against the applicant on 15 January 1991 for the AWOL period.

7.  On 15 January 1991, the applicant consulted with counsel and 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.  She indicated that by submitting her request for discharge she acknowledged she was guilty of a charge against him that authorized the imposition of a bad conduct or dishonorable discharge.  She indicated in her request she understood that she might be discharged under conditions other than honorable, that she might be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), that she would be deprived of many or all Army benefits, and that she might be ineligible for many or all benefits as a veteran under both Federal and State laws.  She acknowledged that she might expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  She elected not to make a statement in her own behalf.

8.  On 24 January 1991, the separation authority approved the applicant's voluntary request for discharge and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

9.  On 27 February 1991, she was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  She completed 11 months and 14 days of creditable active service with 267 days of time lost.

10.  There is no evidence which shows she was diagnosed with any medical or mental condition prior to her discharge.

11.  There is no evidence the applicant applied to the Army Discharge Review Board for upgrade of his 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 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.  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 3-7a, 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.

14.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends she went AWOL due to physical and mental duress.  However, there is no evidence of record and she did not provide any evidence that shows she was diagnosed with any medical or mental condition prior to her discharge on 27 February 1991.

2.  Family problems are not normally grounds for upgrading a discharge.  There is no evidence of record to show the applicant sought assistance from her chain of command, chaplain, or any other available resources on a way to resolve her problems within established Army procedures.

3.  Her voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  She had an opportunity to submit a statement in which she could have voiced her concerns; however, she elected not to do so.

4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

5.  Her brief record of service included 267 days of lost time.  As a result, her record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge or a general discharge.

6.  In view 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)                                         AR20100025846



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ABCMR Record of Proceedings (cont)                                         AR20100025846



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