IN THE CASE OF:	  

		BOARD DATE:	  19 May 2011

		DOCKET NUMBER:  AR20100027682 


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 needs veterans' benefits.  She also states she was misled regarding the nature of her character of service.

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.  The applicant's record shows she enlisted in the Regular Army on 6 August 1980 and held military occupational specialty 94B (Food Service Specialist).  The highest rank/grade she attained during her military service was private first class/E-3.  She served in Germany from 3 January 1981 to 29 December 1982 and she was awarded the Army Service Ribbon and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

3.  On 12 May 1982, she accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being disrespectful in language toward a superior noncommissioned officer (NCO).

4.  On 3 December 1982, her command preferred court-martial charges against her for the following offenses on divers occasions:

* three specifications of failing to go at the time prescribed to her appointed place of duty 
* three specifications of willfully disobeying a superior NCO
* three specifications of being disrespectful toward a superior NCO

5.  On 16 December 1982, the applicant consulted with legal counsel who advised her of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights available to her.  Following consultation with legal counsel, she voluntarily 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.

6.  In her request for discharge, she indicated she was making the request of her own free will and had not been subjected to any coercion whatsoever by any person.  She also indicated she understood that by requesting discharge, she was admitting guilt to the charges against her or of lesser-included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge.  She further acknowledged she understood that if the discharge request were approved, she could be deprived of many or all Army benefits, she could be ineligible for many or all benefits administered by the Veterans Administration (VA), and she could be deprived of her rights and benefits as a veteran under both Federal and State laws.  Her request also stated, "Moreover, I hereby state that under no circumstances do I desire further rehabilitation, for I have no desire to perform further military service."

7.  In December 1982, her immediate, intermediate, and senior commanders recommended approval of her discharge with the issuance of an under other than honorable conditions discharge.

8.  On 4 January 1983, the separation authority approved the applicant's request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, and directed that she receive an under other than honorable conditions discharge and be reduced to the lowest enlisted grade, if applicable.  Accordingly, the applicant was discharged on 12 January 1983.

9.  Her 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 a characterization of service of under other than honorable conditions.  This form confirms she completed 2 years, 5 months, and 7 days of active service.

10.  On 19 June 1992, the Army Discharge Review Board denied her petition for an upgrade of her discharge.

11.  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, an under other than honorable conditions discharge is normally considered appropriate.

12.  Paragraph 3-7a of Army Regulation 635-200 states 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.

13.  Paragraph 3-7b of Army Regulation 635-200 states 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 contends her under other than honorable conditions discharge should be upgraded to an honorable discharge because she was misled regarding the nature of her character of service and she needs veterans' benefits.

2.  The applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  After consulting with counsel and being advised of her rights, the applicant voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and her rights were fully protected throughout the separation process.  Further, her discharge accurately reflects her overall record of service.

3.  There is no evidence in her records and she did not submit any substantiating evidence that shows she was misled regarding her discharge or the character of her service.  Additionally, the ABCMR does not correct records solely for the purpose of establishing entitlement to benefits.

4.  Based on the applicant's overall record of indiscipline, her service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered her service unsatisfactory.  Therefore, there is no basis for upgrading the applicant's to either honorable or general under honorable conditions.

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)                                         AR20100027682



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ABCMR Record of Proceedings (cont)                                         AR20100027682



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