IN THE CASE OF:	  

		BOARD DATE:	  19 July 2011

		DOCKET NUMBER:  AR20100029132 


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 that her discharge under other than honorable conditions be upgraded to an honorable discharge or a general discharge under honorable conditions.

2.  The applicant states that prior to arriving at Fort Campbell, KY, she married another Soldier, a staff sergeant.  She was told she would be entitled to basic allowance for quarters (BAQ) at the without dependents rate.  She states she was put in for BAQ at the with dependent rate and she was put in for separate rations, which she was not entitled to.  After receiving two or three leave and earnings statements (LES), it was clear to her that she was being paid more than she should have been.  Her chain of command told her to go to Finance to get her pay fixed.  She tried to pay back the excess pay she received, but the Finance personnel told her it would be taken out of future pay.  She started to receive LES's that showed no pay due and she thought the problem had been resolved.

3.  She was counseled on 9 October 1991 by her first sergeant.  She states he had already predetermined that she had purposefully defrauded the government and that she would be investigated by the Military Police.

4.  She knew she was being investigated and that charges had been preferred against her.  She states her appointed counsel advised her she did not have much choice but to agree to an involuntary separation for the good of the service, otherwise she could go to prison.  At no time was she ever shown any evidence of having applied for separate rations.  She took the "deal," not realizing how an under other under than honorable conditions discharge would follow her for the rest of her life.

5.  She states it has now been over 20 years since her discharge and any overpayment she received has long since been repaid.  Since her discharge she has been an active and involved citizen, has never been in any trouble, and has raised a beautiful family.  She states that at the time of her discharge she felt as though she was being steamrolled and powerless.  She knew she had been wronged, but given her youth and inexperience she had no idea as to how or when to correct it.

6.  The applicant provides:

* six training certificates
* a DA Form 4187 (Personnel Action) to stop payment of separate rations
* four LES's for August, September, October, and November 1991
* a DA Form 4856 (General Counseling Form), dated 9 October 1991
* a report of investigation
* a DD Form 458 (Charge Sheet), dated 14 November 1991
* her request for discharge
* an Internal Revenue Service Repayment Notification
* five letters of recommendation
* 12 certificates of achievement/award

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 at 23 years of age on 21 November 1990.  She completed basic combat and advanced individual training and was awarded military occupational specialty 77F (Petroleum Supply Specialist).

3.  On 14 August 1991, she was assigned to the 102nd Quartermaster Company at Fort Campbell, KY.

4.  Her separation package was not filed in her military personnel records jacket. 
The following evidence is derived from documents submitted by the applicant.

5.  A DA Form 4187, date unreadable, stopped her separate rations effective 3 October 1991.  The form indicates she lived in the barracks.

6.  Her LES's show no payment due as follows:

* 1-31 August 1991 – no payment due for end of the month payment
* 1-31 October 1991 – no payment due for end of the month payment
* 1-30 November 1991 – no payment due for mid-month and end of the month payment

7.  On 9 October 1991, her first sergeant counseled her concerning unauthorized receipt of separate rations.  He stated she had been billeted in the barracks since her arrival in the unit in August 1991 and she was provided a meal card issued on 19 September 1991.  He stated she denied ever putting in for separate rations.  He stated the allowance would not have been started unless she provided some documentation to Finance.  He felt she knowingly provided false information to gain an unauthorized pay allowance.  He informed her the matter would be investigated by the Military Police and upon completion of the investigation, appropriate action would be taken.  The applicant stated on the form that when she received her LES for September she found that she was receiving separate rations, but she did not know why she was receiving it or how it got started.

8.  The report of investigation revealed that on 1 October 1991 the applicant received BAQ and separate rations totaling $1,244.55 while possessing a meal card and residing in the barracks.  Further investigation revealed that at approximately 0900 hours on 3 September 1991, she signed a DD Form 3298 (Authorization to Start or Stop BAQ) to start BAQ and falsely claimed that her spouse was not a member of the Armed Forces which enabled her to receive back pay for separate rations and BAQ from 1 July 1991.

9.  On 14 November 1991, court-martial charges were preferred against the applicant for presenting a DD Form 3298 for approval of a claim against the Finance Office at Fort Campbell, KY, in the amount of $869.70 for BAQ which was false and fraudulent in the amount of $869.70, in that her spouse was a member of the Armed Forces and was then known by her to be false and fraudulent.

10.  On 14 November 1991 after consulting with her appointed counsel, she voluntarily requested discharge for the good of the service.  She acknowledged she understood the elements of the offense she was being charged with and that she was:

* making the request of her own free will
* guilty of the offense with which she was charged
* afforded the opportunity to speak with counsel prior to making this request
* advised she could be furnished an Under Other Than Honorable Conditions Discharge Certificate

11.  In addition, she acknowledged she understood she could expect to encounter substantial prejudice in civilian life if an under other than honorable conditions discharge were issued to her.  She also acknowledged she understood she:

* would be deprived of many or all Army benefits
* might be ineligible for many or all Department of Veterans Affairs (VA) benefits
* might be deprived of her rights and benefits as a veteran under both Federal and State laws

12.  She did not submit a statement in her own behalf.

13.  On 6 December 1991, she was discharged for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations).  She completed 1 year and 16 days of active service that was characterized as under other than honorable conditions.

14.  There is no indication that she applied to the Army Discharge Review Board for an upgrade of her discharge within its 15-year statute of limitations.

15. The letters of recommendation she submitted are dated from 4 May 1999 to 12 January 2004.  They state she:

* would be an asset to any program
* volunteered her services in the community, hospital, and church
* dedicated her time toward service projects and substitute teaching
* has been active in several ministries and auxiliaries
* would be an asset to any community she resides in

16.  Army Regulation 635-200, then in effect, set forth the basic authority for the administrative separation of enlisted personnel.  Chapter 10 provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges were preferred.  The request must include the Soldier's acknowledgement that the Soldier understood the elements of the offense(s) charged and that the Soldier was guilty of the charge(s) or of a lesser-included offense therein contained which also authorized the imposition of a punitive discharge.  A discharge under other than honorable conditions was normally considered appropriate.

17.  Army Regulation 635-200 states 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.

18.  Army Regulation 635-200 states 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.  She voluntarily requested discharge and admitted guilt to the offense for which she was charged.  She also acknowledged that she could receive an under other than honorable conditions discharge and that she might be ineligible for many or all Army benefits, to include benefits administered by the VA.  Therefore, she was well aware of the consequences of her request.

2.  The applicant's age at time of enlistment was noted.  However, many Soldiers enlisted at a younger age and went on to complete their enlistments and receive honorable discharges.  Therefore, the applicant's age is not sufficient to change a properly-issued discharge.

3.  She was not discharged based on whether or not she fraudulently received BAQ or separate rations or whether there were mitigating circumstances.  These decisions would have been made at court-martial.  She was discharged based on her own request to be discharged in lieu of trial by court-martial.

4.  Her voluntary request for discharge for the good of the service to avoid trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations.  There is no evidence of procedural or other errors that would have jeopardized her rights.

5.  The character references and certificates of achievement submitted by the applicant were reviewed.  However, good post-service conduct and achievement are not a sufficient basis for upgrading a properly-issued discharge.

6.  In view of the above, there is insufficient substantive evidence on which to base an upgrade of her discharge to either a general or an honorable 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 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)                                         AR20100029132



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100029132



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1