BOARD DATE:	  12 May 2011

		DOCKET NUMBER:  AR20100026810


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 general discharge to an honorable discharge.

2.  The applicant states she was not provided proper counsel or alternatives at the time of her discharge.  She states she was forced to admit to something she was uncertain about and she was not provided any other options.

3.  The applicant provides no additional documentation.

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 Regular Army on 2 March 1992.  She completed training as a logistics automation specialist.

3.  The available record shows she was notified that charges were pending against her for wrongfully possessing and using a controlled substance.  On 10 February 1995, after consulting with counsel, she submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  In her request for discharge, she acknowledged she understood:

* she was making the request of her own free will and she had not been subject to any coercion whatsoever by any person
* she was advised of the implications that are attached to requesting a discharge for the good of the service - in lieu of trial by court-martial
* she understood the elements of the offenses and that she was guilty of at least one of the charges against her or at least one of the lesser included offenses which also authorized the imposition of a bad conduct or dishonorable discharge
* if her request for discharge was accepted, she could be discharged under other than honorable conditions
* as a result of the issuance of such a discharge, she could be deprived of many or all Army benefits
* she could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA)
* she could be deprived of her rights and benefits as a veteran under both Federal and State laws
* she could expect to encounter substantial prejudice in civilian life by reason of an under other than honorable conditions discharge

4.  On 28 February 1995, the separation authority, a lieutenant general, approved her voluntary request for discharge and directed the issuance of an under other than honorable conditions discharge and reduction to private (PV1)/E-1.  On
5 October 1995, she was discharged accordingly 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 3 years, 7 months, and 4 days of creditable active service.

5.  On 27 June 1996, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of her discharge.  On 12 February 1997, after careful review of her records, the ADRB determined her discharge was inequitable because her quality of service determination at the time of discharge was 

inconsistent with the faithful and honorable service rendered during the period of service under review by the board.  As a result, the ADRB voted to grant partial relief in the form of a general, under honorable conditions discharge with restoration of grade to specialist (SPC)/E-4.

6.  Army Regulation 635-200 (Personnel Separations) 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.

7.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions have been noted.  However, they are not substantiated by the evidence of record.

2.  Her records show that she consulted with counsel prior to submitting her request for discharge for the good of the service in lieu of trial by court-martial.  In her request for discharge she acknowledged that she was not coerced by anyone and she admitted guilt of at least one of the charges.

3.  Her contention that she was not provided other options is also without merit.  She requested discharge in lieu of trial by court-martial.  She had the option of standing trial by court-martial.  She elected not to do so.

4.  The type of discharge she received was appropriate considering the nature of her offenses.  The fact that the ADRB upgraded her discharge from an under other than honorable conditions to a general discharge is not a basis for granting her a further upgrade of her discharge.  Her service does not warrant a fully honorable discharge.

5.  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)                                         AR20090005994



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ABCMR Record of Proceedings (cont)                                         AR20100026810



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