BOARD DATE:	  8 September 2011

		DOCKET NUMBER:  AR20110004452 


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 under other than honorable conditions discharge be upgraded to a general under honorable conditions discharge.  In addition, she requests her DD Form 214 (Certificate of Release or Discharge from Active Duty) to be corrected to show:

* Item 11 (Primary Specialty Numbers, Title and Years and Months in Specialty) 95C (Corrections Specialist)
* Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) Expert Marksmanship Qualification Badge with Grenade Bar
* Item 14 (Military Training) Corrections Specialist 
* Item 17 (Days Accrued Leave Paid) 55

2.  The applicant states the event leading to her discharge was a one-time offense in an otherwise exemplary military career.  She was coerced into signing a request for discharge after being made to fear for her safety if she received a  court-martial and was put in jail as a former military policeman.  She further states she was never given an opportunity to rehabilitate, was young and unaware of her rights, and scared of the consequences she would face if she received a court-martial.  As a single woman currently experiencing homelessness, she has found it necessary to advocate for an upgrade of her discharge in order to gain access to Department of Veterans Affairs (VA) benefits.


3.  The applicant provides:

* a self-authored statement
* 11 pages of her separation proceedings
* a DD Form 214
* a list of corrections needed to her DD Form 214
* a Letter of Appreciation, dated 29 February 1984
* a Recommendation for Secondary Military Occupational Specialty (MOS), dated 23 January 1984
* a DA Form 4187 (Personnel Action)

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 20 October 1981.  Her records show she completed basic combat and advanced individual training and was awarded MOS 76Y (Unit Supply Specialist).  The highest rank/grade she attained while serving on active duty was specialist four (SP4)/E-4.  However, she held the rank/grade of private (PVT)/E-1 at the time of separation.

3.  The applicant was punished under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 19 February 1982 for failing to go at the time prescribed to her appointed place of duty.

4.  On 22 March 1984, charges were preferred against the applicant for:

* wrongfully possessing .3 grams, more or less, of marijuana
* wrongfully possessing .9 grams, more or less, or cocaine

5.  On 23 March 1984, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a discharge under other than honorable conditions, and of the procedures and rights that were available to her.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

6.  In her request for discharge, the applicant indicated she understood that by requesting a discharge, she was admitting guilt to the charges against her or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  She further acknowledged she understood that if her discharge request were approved, she could be deprived of many or all Army benefits, that she could be ineligible for many or all benefits administered by the VA, and that she could be deprived of her rights and benefits as a veteran under both Federal and State laws.

7.  On 23 March 1984, the separation authority approved the applicant's request for discharge and directed that she receive an under other than honorable conditions discharge.  On 17 April 1984, the applicant was discharged accordingly.  The DD Form 214 she was issued shows she completed 2 years,    5 months, and 28 days of creditable active service during this period.  This form further shows:

* Item 11, 76Y10, Unit Supply Specialist, 2 years 1 month
* Item 13, Army Service Ribbon, Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16)
* Item 14, Unit Supply Specialist, 11 weeks (1982), Unit Supply, 3 weeks (1982), Unit Armorer 2 weeks (1982)
* Item 17, None

8.  The applicant’s record does not contain nor did the applicant provide evidence which shows she was awarded a primary MOS other than MOS 76Y.  The applicant provided a memorandum which states she satisfactorily completed an Installation Detention Facility on-the-job training (OJT) program for MOS 95C while stationed at Fort Carson, CO.  This memorandum shows she performed the duties of MOS 95C from 10 April to 31 July 1982 and from 27 June 1983 to          23 January 1984, a total of 10 months and 20 days.

9.  Her record does not contain nor did the applicant provide evidence which shows she attained qualification with the hand grenade.

10.  There is no evidence in the applicant’s record nor did she provide evidence which shows she had 55 days leave accrued at the time of her discharge.  Additionally, Army Regulation 600-8-10 (Leaves and Passes) provides that accrued leave is forfeited when a Soldier is discharged in lieu of trial by court-martial.

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

12.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) 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 the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate.

13.  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.  

14.  Army Regulation 635-5 (Separation Documents), in effect at the time of the applicant's separation, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  This regulation established standardized policy for the preparation of the DD Form 214.  In pertinent part, it stated that:

	a.  Item 11, enter the MOS codes, titles, years, and months for warrant officers and enlisted personnel involving periods of one or more years.

   b.  Item 13, entries will be for all periods of service.  Check Soldier’s service records for validity of awards.

   c.  Item 14, list in–service training courses; title, number of weeks year successfully completed during this period of service; e.g., medical, dental, electronics, supply, administration, personnel, or heavy equipment operations.  This information is to assist the member after separation in job placement and counseling; therefore, training courses for combat skills will not be listed on the DD Form 214. 
   
   d.  Item 17, enter the number of days of accrued leave paid or the word “none.”  


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that her under other than honorable conditions discharge be upgraded to a general under honorable conditions discharge was carefully considered and determined to be without merit.

2.  Her record shows she was charged with the commission of an offense punishable under the UCMJ with a punitive discharge and she voluntarily requested discharge under the provisions of chapter 10 of Army Regulation   635-200 to avoid a trial by court-martial which may have resulted in a felony conviction.

3.  The evidence shows she was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence of procedural errors which would have jeopardized her rights.  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.

4.  Based on this record of indiscipline, the applicant's misconduct renders her service unsatisfactory.  Therefore, the applicant is not entitled to a general under honorable conditions discharge.

5.  With respect to the applicant’s assertion that she trained and served as a 95C from 1982 through March 1984, her records do not contain orders nor did she provide orders awarding her MOS 95C; furthermore, there is no provision for listing OJT on the DD Form 214.  In addition, the applicant’s record does not contain nor did she provide evidence which shows she qualified with the hand grenade.  Lastly, Army Regulation 600-8-10 provides that accrued leave is forfeited when a Soldier is discharged in lieu of trial by court-martial; therefore, there is no basis for granting the applicant's requested relief in regard to item 17 of her DD Form 214.  

6.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for health care and other benefits should be addressed to the VA.




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)                                         AR20110004452



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ABCMR Record of Proceedings (cont)                                         AR20110004452



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