BOARD DATE:	  15 December 2011

		DOCKET NUMBER:  AR20110019265 


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 an upgrade of her under other than honorable conditions discharge (UOTHC). 

2.  The applicant states:

* vigorious interrogation by the U. S, Army Criminal Investigation Command (CID) forced her into a state of depression
* she was forced to accept a UOTHC by the Judge Advocate General (JAG) and CID to cut government expenses
* due to her mental state she reluctantly accepted a UOTHC

3.  The applicant provides a self-authored statement.

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 27 January 1982.  She completed basic combat and advanced individual training and was awarded military occupational specialty 75C (Personnel Management Specialist).  The highest rank/grade she attained while serving on active duty was specialist four (SPC)/E4.

3.  On 25 August 1986, charges were preferred against the applicant for:

* larceny (in excess of $100.00) by wrongfully receiving pay as a sergeant/E5
* wrongfully impersonating a noncommissioned officer

4.  On 7 November 1986, the applicant consulted with legal counsel and she was advised of the basis for the contemplated trial by court martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a discharge UOTHC, and of the procedures and rights that were available to her.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

5.  In her request for discharge, she acknowledged she understood that by requesting discharge, she was admitting guilt to the charge 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 was approved, she could be deprived of many or all Army benefits, that she could be ineligible for many or all benefits administered by the Veterans Administration, and that she could be deprived of her rights and benefits as a veteran under both Federal and State laws.  

6.  There is no evidence in the available records which shows she reported to her chain of command that she was suffering from depression or that she was treated for depression during her military career.  Her medical records were unavailable for review.

7.  On 19 November 1986, the separation authority approved her request for discharge and directed the issuance of a UOTHC discharge.  On 24 November 1986, she was discharged accordingly.  Her DD Form 214 shows she completed 4 years, 9 months, and 29 days of net active service during this period of active duty.  
8.  She provides a self-authored statement in which she essentially states:

* her decision was based on the possibility of ending up with a felony conviction
* her military record was unblemished
* it was her firm conviction that she learned and gave a lot to the military

9.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of her discharge within its 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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 UOTHC is normally considered appropriate

11.  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.

12.  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 contention that her UOTHC discharge should be upgraded was carefully considered; however, it was determined there is insufficient evidence to support her request.

2.  Records show the applicant was charged with the commission of offenses 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.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, she admitted guilt and waived her opportunity to appear before a court-martial.  

3.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects her overall record of service.

4.  Records show the applicant was charged with a serious offense.  Based on the severity of the offense, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.    Therefore, the applicant is not entitled to a general or 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 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)                                         AR20110019265



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ABCMR Record of Proceedings (cont)                                         AR20110019265



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