IN THE CASE OF:	  

		BOARD DATE:  13 June 2013	

		DOCKET NUMBER:  AR20120021336 


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 discharge under other than honorable conditions to general under honorable conditions.

2.  The applicant states she was told her discharge would be upgraded to under honorable conditions after 6 months.  She was not told that she would have to file paperwork to have it changed.  She states that it was an error on the part of the Army by not properly informing her that she had to apply for an upgrade of her discharge.

3.  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.  After serving in the U.S. Army Reserve from 13 November 1978 to 22 July 1979, she enlisted in the Regular Army on 23 July 1979 for a period of 4 years.  She completed her training and was transferred to Germany on 20 May 1981.

3.  She completed her overseas tour in Germany on 19 April 1983 and was transferred to the Presidio of San Francisco, California.  She was promoted to pay grade E-5 on 2 September 1983.

4.  On 7 March 1984, she reenlisted for a period of 2 years.  On 3 May 1984, she was absent without leave (AWOL).  She remained absent in desertion until she surrendered to military authorities on 4 September 1984 and charges were preferred against her for the unauthorized absence.

5.  On 21 September 1984 after consulting with defense counsel, the applicant submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  She indicated she was making the request of her own free will without coercion from anyone and she was aware of the implications attached to her request.  She also admitted she was guilty of the charges against her or of lesser-included offenses that authorized the imposition of a bad conduct or dishonorable discharge.  She acknowledged she understood he could receive a discharge under other than honorable conditions and she might be deprived of all benefits as a result of such a discharge.  She also acknowledged that she understood that there was no automatic upgrading or review by any government agency and that she must apply to the Army Discharge Review Board or the ABCMR if she wished to have her discharge reviewed.  She elected not to submit a statement in her own behalf.

6.  On 29 October 1984, the appropriate authority approved the applicant's request for discharge and directed the issuance of an Under Other than Honorable Conditions Discharge Certificate.
 
7.  On 8 November 1984, she was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  She completed 4 years, 11 months, and 12 days of active service and accrued 124 days of lost time due to being AWOL.

8.  There is no evidence in the available records to show she applied to the Army Discharge Review Board for an upgrade of her discharge within that board's 
15-year statute of limitations.

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

	a.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Under Other than Honorable Conditions Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

	b.  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 voluntary request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert her innocence before a trial by court-martial, she voluntarily requested discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on her record.  In doing so, she admitted guilt to the charges against her.

3.  The applicant's contentions have been noted.  However, they are not supported by the evidence of record nor are they sufficiently mitigating to warrant relief under the circumstances given the extensive length of her absence, the absence of mitigating circumstances, and her rank at the time.  She acknowledged in her request for discharge that there was no automatic upgrading of a discharge and she would have to apply for an upgrade.

4.  Accordingly, there appears to be no basis to grant the applicant's request for an upgrade of her 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)                                         AR20120021336



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ABCMR Record of Proceedings (cont)                                         AR20120021336



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