IN THE CASE OF:	  

		BOARD DATE:  24 April 2012

		DOCKET NUMBER:  AR20110023463 


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 under other than honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states that she has been a good citizen and has earned an upgrade to her discharge.  It has now been 7 years since she was discharged. 

3.  The applicant provides:

* DD Form 214  (Certificate of Release or Discharge from Active Duty) ending 8 December 1994
* Five character reference letters

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 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 1September 1993.  She completed training and she was awarded military occupational specialty 94B (Food Service Specialist). 

3.  She served in Korea with A Company, 302nd Forward Support Battalion from 14 February 1994 to on or about 27 August 1994.  The highest rank/grade she attained during her military service was private first class/E-3.

4.  On 27 August 1994, she departed her unit in an absent without leave (AWOL) status and on 26 September 1994, she was dropped from the rolls of the Army as a deserter.  She returned to military control on 8 October 1994.

5.  On 12 October 1994, her unit preferred court-martial charges against her for one specification of being AWOL from 27 August to 8 October 1994.

6.  On 13 October 1994, the applicant consulted with legal counsel and she was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights available to her.  Following consultation with legal counsel, she 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.

7.  She indicated she was making this request of her own free will and she had not been subjected to any coercion whatsoever by any person.  She also indicated:

* she understood that by requesting 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 discharge or a discharge under other honorable conditions
* she acknowledged she understood if her discharge request were approved, she could be deprived of many or all Army benefits, she could be ineligible for many or all benefits administered by the Department of Veterans Affairs
* she acknowledged she understood she could be deprived of her rights and benefits as a veteran under both Federal and State laws
* she indicated that under no circumstances did she desire further rehabilitation and she had no desire to perform further military service
* she elected not to submit a statement on her own behalf

8.  On 18 November 1994, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  The applicant was accordingly discharged on 8 December 1994.

9.  The DD Form 214 she was issued confirms she was discharged under the provision of Army Regulation 635-200, chapter 10, in lieu of court-martial with an under other than honorable conditions.  She completed 1 year, 1 months, and
27 days of creditable active service with 42 days of time lost.

10.  She submitted five character reference letters from various friends who describe her as sweet, friendly, and helpful.

11.  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 under other than honorable conditions is normally considered appropriate.

12.  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.

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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her discharge should be upgraded.

2.  The applicant's record shows she was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  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.

3.  The Army does not now have or ever had a policy wherein a discharge is upgraded due to passage of time. 

4.  Based on her record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered her service unsatisfactory.  Therefore, she is not entitled to either an honorable or 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)                                         AR20110023463



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ABCMR Record of Proceedings (cont)                                         AR20110023463



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