BOARD DATE:	  11 August 2011

		DOCKET NUMBER:  AR20110003313 


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 undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states that while at Fort Sam Houston, Texas she was notified that she was pregnant and she would be at home; however, 3 years later she was picked up and taken to Fort Ord, California.  She goes on to state that a Congressman (a friend) got involved in her case.  But the folks at Fort Ord did not care about her, they just wanted to get the Congressman off their back.  She further states that she had two daughters by then and wanted to take care of her children; however, the folks at Fort Ord used that against her.  She also states that she should have stayed and gone through the court-martial process.  But she believed it would have taken 6 to 12 months to resolve the issue and she needed to get back to her children.  She continues by stating that she has raised six daughters and has not had any problems with them; they are all established citizens.

3.  The applicant provides no additional documents with her application.

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 Women’s Army Corp (WAC) of the Regular Army on 22 September 1969 for a period of 3 years and training as a radiographic procedures specialist.  

3.  At the time of enlistment she signed a 6RD Form 59 (Marriage Statement) which indicates she understood at her request she could be separated from the WAC upon marriage after satisfying the service requirements on her current enlistment which were incurred by school attendance, promotion, or completion of 18 months of her current enlistment, whichever is later.

4.  She completed her basic training at Fort McClellan, Alabama and was transferred to Fort Sam Houston, Texas on 22 November 1969 to undergo advanced individual training.

5.  On 12 January 1970, nonjudicial punishment was imposed against her for being absent without leave (AWOL) from 7 to 10 January 1970.  On 29 January 1970, she was transferred to train as a medical records specialist.

6.  The last entry in her medical records is dated 13 February 1970, and there is no evidence in those records to verify that the applicant was pregnant.

7.  On 17 February 1970, she went AWOL and she remained absent in a desertion status until she was apprehended by civil authorities in Fresno, California on 10 July 1974 and returned to military control at Fort Ord, California where charges were preferred against her on 11 July 1974.

8.  On 19 July 1974, after consulting with defense counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – General), chapter 10, in lieu of trial by court-martial.  In her request she indicated she was making the request of her own free will without coercion from anyone and that she was aware of the implications attached to her request.  She acknowledged she understood that she could receive a discharge under other than honorable 


conditions and that she might be deprived of all benefits as a result of such a discharge.  She further stated she had been advised not to accept a discharge under other than honorable conditions with the expectation that it would later be changed to a general or an honorable discharge because the likelihood of that ever occurring was extremely remote.  

9.  She elected to submit a statement in her own behalf in which she stated that she had been told by the base doctor that she was pregnant, and the kid’s father was going to Vietnam and they wanted to get married.  She went on to state that a sergeant told her that she was not going to marry anyone and she got fed up and said “screw it” and left.  She went on to state that she wanted to go home forever to take care of her two daughters and that she would leave again if made to return.  She further stated that she understood what a chapter 10 discharge was and was willing to accept an undesirable discharge.

10.  On 10 August 1974, the appropriate authority (a major general) approved her request for discharge and directed that she be furnished an Undesirable Discharge Certificate.

11.  Accordingly, on 15 August 1974, she was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial with an undesirable discharge.  She had completed 5 months and 10 days of total active service and she had 1,604 days of lost time due to being AWOL.

12.  There is no evidence in the available records to show that she ever applied to the Army Discharge Review Board for an upgrade of her discharge within that board’s 15-year statute of limitations.

13.  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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must indicate that he or she is submitting the request of his or her own free will without coercion from anyone and that he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time an undesirable discharge was considered appropriate.



14.  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.

15.  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's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert her innocence before a trial by court-martial, she voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on her record.

3.  The applicant's contentions have been considered.  However, they are not sufficiently mitigating to warrant relief when compared to the length of her absence, her short period of service and the absence of mitigating circumstances.  Her service simply did not rise to the level of even 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)                                         AR20110003313



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ABCMR Record of Proceedings (cont)                                         AR20110003313



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