IN THE CASE OF:	  

		BOARD DATE:	  8 December 2011

		DOCKET NUMBER:  AR20110012157


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 discharge under other than honorable conditions (UOTHC) be upgraded.

2.  The applicant states she was stationed at Fort Knox, KY, and:

* she was young (almost 19) and recently married
* she was homesick
* her "CCO" [presumably her commanding officer (CO)] told her to leave on Friday and not return to the unit
* her CO told her to stay absent without leave (AWOL) for 6 months, then turn herself in to the military police at Fort Knox and she would be processed out of the service
* her CO offered her a ride to the bus station
* she was told her discharge UOTHC would be automatically upgraded to honorable after 5 years

3.  The applicant states that today:

* she is 30 years older
* she is an outstanding, law-abiding, tax-paying, voting citizen
* she has a college degree
* she raised a daughter and is now raising two grandchildren
* she works full-time for the Internal Revenue Service (IRS)

4.  The applicant provides a copy of 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 was born on 21 October 1960 and enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) for 6 years on 30 October 1978.  On 16 April 1979, she was discharged from the DEP and enlisted in the Regular Army for 3 years on 17 April 1979 at 18 years, 5 months, and 28 days of age for training in military occupational specialty (MOS) 94F(Hospital Food Service Specialist).

3.  The applicant received basic training at Fort McClellan, AL, and advanced individual training at Fort Sam Houston, TX.  Following completion of all training on 24 August 1979, she was awarded MOS 94F and assigned to the 42nd Field Hospital at Fort Knox.

4.  The applicant was AWOL from 21 September 1979 to 11 February 1980 when she returned to military control.

5.  On 12 February 1980, the applicant was formally charged with violating Article 86 (AWOL), Uniform Code of Military Justice.  On 14 February 1980, she consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  She acknowledged she was guilty of the charge against her which authorized the imposition of a bad conduct or dishonorable discharge and she did not desire further rehabilitation or have any desire for further military service.  She stated she understood the nature and consequences of the UOTHC discharge she might receive.  She submitted a statement in her own behalf.

6.  In her statement, the applicant said:

* she was a 19-year old Soldier with a high school diploma
* she enlisted due to parental and recruiter pressure
* she entered active duty to be a dietician's assistant helping with patient meals
* her recruiter told her she'd be a "pencil pusher"
* after receiving MOS 94F, she reported to Fort Knox where she was assigned to a mess hall as a short order cook
* she didn't like it and went to her chain of command
* she was told Fort Knox was short cooks and there was nothing they could do for her
* she learned that MOS 94F was nothing but a glorified 94B (Cook)
* her recruiter lied to her, she wanted him investigated, she wanted to get out of the Army
* she also didn't like being whistled at and ogled by a bunch of "animals"

7.  On 21 May 1980, the approving authority approved the applicant's request for discharge under the provisions of chapter 10, Army Regulation 635-200, and directed a discharge UOTHC.

8.  On 25 June 1980, the applicant was discharged UOTHC.  There is no record the applicant petitioned the Army Discharge Review Board seeking a discharge upgrade during that board's 15-year statute of limitations.

9.  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, a UOTHC discharge is normally considered appropriate.

10.  Army Regulation 635-200 provides guidance on characterization of service and states:

	a.  Paragraph 3-7a 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.

	b.  Paragraph 3-7b 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 requests a discharge upgrade.

2.  The record shows the applicant was unhappy with being placed in a mess hall as a short order cook when she thought she'd be working in an office with a dietician.  As a result of this unhappiness, she was AWOL for 4 months and 21 days.

3.  Upon returning to military control, she was charged with AWOL and she requested discharge for the good of the service in lieu of trial by court-martial.

4.  The applicant consulted with legal counsel who explained the basis for the separation action, its effects, and the rights available to her.  She waived her rights and submitted a statement on her own behalf saying she was disgruntled with the Army and wanted to get out.  The separation action was approved.

5.  Her request for separation 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 indication the request was made under coercion or duress.  Her request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show she wished to avoid the court-martial and punitive discharge she might have received.

6.  The U.S. Army does not have nor has it ever had a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant submits an application requesting a change in discharge.

7.  The applicant is applauded for her post-service record of good citizenship; however, post-service conduct alone does not justify a discharge upgrade.



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)                                         AR20110012157



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ABCMR Record of Proceedings (cont)                                         AR20110012157



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