IN THE CASE OF:	  

		BOARD DATE:	  16 August 2012

		DOCKET NUMBER:  AR20120003081 


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 upgrade of her under other than honorable conditions discharge.

2.  The applicant states her discharge was based on an isolated incident.  She proudly served her country and received several letters in recognition of her service from multiple supervisors.  It has now been over 28 years since her discharge and she has since been a model citizen and an asset to her community.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* multiple letters of appreciation
* multiple certificates of training and/or appreciation
* certificate of training
* discharge certificate

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 1 October 1980.  She completed basic combat training at Fort Dix, NJ, and advanced individual training at Fort Jackson, SC.  She was awarded military occupational specialty 94B (Food Service Specialist). 

3.  She received multiple certificates while at Fort Dix and at Fort Jackson for various achievements and/or outstanding performance as a trainee. 

4.  She was assigned to Headquarters and Headquarters Company, 7th Infantry Division, Fort Ord, CA, where she continued to receive accolades in the form of certificates or letters of appreciation for her outstanding performance and volunteer duties. 

5.  On 19 August 1982, she departed her unit in an absent without leave (AWOL) status (while pending charges from a previous desertion action) and on 19 August 1982, she was dropped from the Army rolls as a deserter. She surrendered to military authorities on 10 December 1982. 

6.  On 15 December 1982, court-martial charges were preferred against the applicant for being AWOL from 19 August to 10 December 1982. 

7.  On 15 December 1982, she consulted with legal counsel and she was advised of the basis for the contemplated trial by court-martial for an offense punishable under the Uniform Code of Military Justice (UCMJ) which authorized the imposition of a bad conduct or a dishonorable discharge, the possible effects of a discharge under other than honorable conditions if her request for discharge in lieu of trial by court-martial were approved, and of the procedures and rights available to her.  Following consultation with legal counsel, she 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.

8.  In her request for discharge, 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 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 Veterans Administration
* she acknowledged she understood she could be deprived of her rights and benefits as a veteran under both Federal and State laws
* she stated that under no circumstances did she desire further rehabilitation and she had no desire to perform further military service

9.  On 2, 3, and 4 February 1983, her immediate, intermediate, and senior commanders recommended approval of her request for discharge with the issuance of an under other than honorable conditions discharge.

10.  On 9 February 1983, 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 and reduction to the lowest enlisted grade.  On 18 February 1983, the applicant was discharged accordingly.

11.  The DD Form 214 the applicant was issued shows she was discharged for the good of the service - in lieu of trial by court-martial with a characterization of service of under other than honorable conditions.  This form shows she completed 2 years and 25 days of creditable active service during this period with time lost 19 August 1982 to 9 December 1982.

12.  On 13 December 1995, the Army Discharge Review Board reviewed her case and denied her petition for an upgrade. 

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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 discharge under other than honorable conditions is normally considered appropriate.

	b.  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.

	c.  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 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.  She 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 her rights were fully protected throughout the separation process.  Further, her discharge accurately reflects her overall record of service.

2.  With respect to her arguments:

	a.  The applicant's multiple certificates of appreciation and/or training as well as her post-service community standing are noted; however, they are not sufficiently mitigating in granting her the requested relief.

	b.  The fact that it has been over 28 years since her discharge does not change the fact that she was AWOL and she willingly elected her voluntary discharge.  The Army never had a policy wherein a discharge is upgraded due to passage of time. 

3.  Based on her record of indiscipline, specifically her extensive history of AWOL, 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.  In view of the foregoing, there is no basis for granting the applicant 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 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)                                         AR20120003081



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120003081



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1