IN THE CASE OF:	  

		BOARD DATE:	  3 May 2011

		DOCKET NUMBER:  AR20100026229 


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 discharge under other than honorable conditions be upgraded to honorable. 

2.  The applicant states: 

* Her DD Form 214 (Certificate of Release or Discharge from Active Duty) has had her listed as having an honorable discharge but recently she was denied services because documentation reported her discharge was under other than honorable condition
* She had to leave the service because her grandmother became seriously ill and needed someone to take care of her
* She left to be with her grandmother
* She was afraid she would not be allowed to obtain emergency leave
* Her grandmother died in 1987
* When the military police took her for final disposition they would not allow her to provide her side of the story 

3.  The applicant provides no documentary evidence.  

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 Army National Guard on 6 January 1983 for a period of 
6 years.  She was ordered to active duty on 26 April 1983 for training.  She completed her training and was awarded military occupational specialty 73C (finance specialist).

3.  On 1 December 1983, she went absent without leave (AWOL) and returned to military control on 20 July 1984.  On 26 July 1984, charges were preferred against her for the AWOL period.

4.  On 26 July 1984, the applicant consulted with counsel and 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 court-martial.  She indicated that by submitting her request for discharge she acknowledged she was guilty of a charge against her that authorized the imposition of a bad conduct or dishonorable discharge.  She indicated in her request that she understood she might be discharged under conditions other than honorable and furnished an under other than honorable conditions discharge, that she might be ineligible for many or all benefits administered by the 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.

5.  On 6 August 1984, the separation authority approved the applicant's voluntary request for discharge and directed the issuance of an under other than honorable conditions discharge.

6.  She was discharged accordingly on 30 August 1984 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 a total of 8 months and 16 days of creditable active service with 232 days of time lost.  Her DD Form 214 shows her character of service was under other than honorable conditions.

7.  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.

8.  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.

9.  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.

10.  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.  Her contention she went AWOL to take care of her sick grandmother was noted.  However, there is no evidence she sought assistance from her chain of command or chaplain for a way to resolve her problems within established Army procedures prior to going AWOL.

2.  She contends her DD Form 214 has shown her character of service as honorable.  However, she failed to provide such a DD Form 214 and the DD Form 214 contained in her service personnel records shows her character of service is under other than honorable conditions.  In addition, evidence shows she consulted with counsel on 26 July 1984 and she indicated in her voluntary request for discharge that she understood she might be discharged under conditions other than honorable and furnished an under other than honorable conditions discharge and that she might be ineligible for many or all benefits administered by the VA.
3.  She contends when the military police took her for final disposition they would not allow her to provide her side of the story.  However, she had an opportunity to submit a statement with her voluntary request for discharge in which she could have voiced her concerns; however, she elected not to do so.

4.  Her voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial was administratively correct and in conformance with applicable regulations.  

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

6.  Her brief record of service on active duty included 232 days of time lost.  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.

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)                                         AR20100026229





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ABCMR Record of Proceedings (cont)                                         AR20100026229



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