IN THE CASE OF:	   

		BOARD DATE:	  25 June 2013

		DOCKET NUMBER:  AR20120020851 


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 discharge.

2.  The applicant states she tried to honor her commitment to serve but she could not because she was physically unable to do so.

3.  The applicant provides no additional evidence.

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 24 February 1978 and she never completed training.

3.  On 28 September 1978, charges were preferred against her for approximately 209 days of being absent without leave (AWOL).

4.  The applicant consulted with counsel and she voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separation – Enlisted Personnel), chapter 10, for the good of the service – in lieu of trial by court-martial.  She stated she understood the charges against her and admitted she was guilty of at least one offense for which a punitive discharge was authorized.  She acknowledged she understood she could receive a discharge under other than honorable conditions.  She indicated that she understood she could be deprived of many or all Army benefits and he might be ineligible for veterans' benefits administered by the Veterans Administration.  She also acknowledged she understood that he could expect to encounter substantial prejudice in civilian life if she were issued an under other than honorable conditions discharge.

5.  She also submitted a personal handwritten statement to the effect that she was severely depressed and on medication when she was supposed to report for active duty.  Her recruiter told her that if her doctor documented this situation she would be released.  Subsequently, both before and after she was arrested by the Federal Bureau of Investigation (FBI), she was told such documentation had been sent.

6.  The chain of command recommended approval of the applicant's request for discharge and the Staff Judge Advocate found the case legally sufficient.

7.  The separation authority approved the request and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

8.  On 22 December 1978, the applicant was discharged accordingly.  She completed 2 months and 22 days of total active service.

9.  There is no indication the applicant ever applied to the Army Discharge Review Board for an upgrade of her discharge within that board's 15-year statute of limitations.

10.  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, an under other than honorable conditions discharge is 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.

11.  The Table of Maximum Punishments of the Manual for Courts-Martial shows a punitive discharge is authorized for any AWOL of more than 30 days.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, even after appropriate and proper consultation with a military lawyer, tends to show she wished to avoid a trial by court-martial and the punitive discharge that she might have received.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors.

3.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

4.  There is no evidence of record that shows the applicant was medically incapable of serving and she has not provided any with her current request.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20120020851



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ABCMR Record of Proceedings (cont)                                         AR20120020851



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