IN THE CASE OF:	  

		BOARD DATE:	  15 November 2011

		DOCKET NUMBER:  AR20110011661 


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 under other than honorable conditions be upgraded to honorable.

2.  The applicant states she has not been charged with any felonies or caused a violation against the U.S. Government since her discharge.  She is applying for the upgrade in order to apply for veteran's benefits because she is unemployed and medically disabled.

3.  The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty), DA Form 2-1 (Personnel Qualification Record), and a Certificate of Achievement.

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 military records are not available for review.  Her military records were requested from the National Personnel Records Center; however, they could not be located.  This request is being considered based on the documents provided by her.

3.  Her DD Form 214 shows she enlisted in the Regular Army on 12 July 1985 and was awarded military occupational specialty 76V (Materiel Storage and Handling Specialist).

4.  Item 18 (Appointments and Reductions) of her DA Form 2-1 shows she was promoted to the rank of sergeant/E-5 on 1 February 1989 and she was reduced to the rank of specialist/E-4 on 3 August 1992.

5.  Her DD Form 214 shows she was discharged on 13 July 1993, in the rank of private/E-1, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, with her service characterized as under other than honorable conditions.  Her DD Form 214 also shows she was assigned a separation program designator (SPD) code of JFS (for the good of the service - in lieu of trial by court-martial).

6.  There is no evidence indicating she applied to the Army Discharge Review Board for an upgrade of her discharge.

7.  She provides a Certificate of Achievement which she was awarded on 
1 December 1986 for exceptionally meritorious achievement during the period 
4 October - 8 November 1986.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel and states in:

	a.  Chapter 10, 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.

	b.  Paragraph 3-7a, 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.

	c.  Paragraph 3-7b, 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 ABCMR does not upgrade discharges for the sole purpose of enabling an individual to apply and/or qualify for veteran's benefits.

2.  Although her record is void of the specific facts and circumstances surrounding her discharge, her DD Form 214 confirms she was discharged under the provisions of Army Regulation 635-200, chapter 10.  It appears she was charged with the commission of an offense(s) punishable under the Uniform Code of Military Justice which could have resulted in a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests and she is presumed to have willingly and in writing requested discharge from the Army to avoid trial by court-martial.  In doing so, she would have admitted guilt and waived her opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met and her rights were fully protected throughout the separation process.

3.  Based on the foregoing, there is no basis to grant the requested relief.

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)                                         AR20110011661



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ABCMR Record of Proceedings (cont)                                         AR20110011661



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