IN THE CASE OF:	

		BOARD DATE:	  27 August 2013

		DOCKET NUMBER:  AR20130000920 


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 her discharge under other than honorable conditions be upgraded to a general discharge under honorable conditions.

2.  The applicant states that she understands what she did was wrong; however, it was an accident and was encouraged by her ex-husband.  She was young, naïve, and stupid and did not understand what she was getting herself into with her ex-husband.  Her ex-husband hid her out and kept her from fixing her mistake.  It was 8 years later that she realized that her ex-husband was very controlling and he wanted her to stay home and be a slave.

3.  The applicant provides no additional evidence in support of her application.

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.  On 30 January 2001, at age 21, she enlisted in the Regular Army for 6 years. 

3.  On 16 August 2001, she departed absent without leave (AWOL) and was dropped from the rolls on 16 September 2001.  She was apprehended by civilian authorities and returned to military control on 11 November 2003.

4.  On 17 November 2003, court-martial charges were preferred against her for being AWOL from on or about 15 August 2001 to on or about 11 November 2003.

5.  On 17 November 2003, she voluntarily requested discharge in lieu of trial by 
court-martial under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations).  She acknowledged she understood the elements of the offense she was being charged with and that she was:

* making the request of her own free will
* guilty of the offense with which she was charged
* afforded the opportunity to speak with counsel prior to making this request
* advised she could be furnished an under other than honorable conditions discharge 

6.  She did not submit statements in her own behalf.  She acknowledged she understood she could expect to encounter substantial prejudice in civilian life if an under other than honorable conditions discharge was issued to her.  She also acknowledged she understood she:

* would be deprived of many or all Army benefits
* may be ineligible for many or all Department of Veterans Affairs benefits
* may be deprived of her rights and benefits as a veteran under both Federal and State laws

7.  On 19 November 2003, the appropriate authority approved her request for discharge in lieu of trial by court-martial.  He directed the applicant be separated under other than honorable conditions.

8.  On 3 December 2003, she was discharged in lieu of trial by court-martial under the provisions of chapter 10 of Army Regulation 635-200.  She completed 6 months and 26 days of net active service that was characterized as under other than honorable conditions.  She had 816 days of time lost.

9.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade her discharge.  On 24 June 2005, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as under other than honorable conditions.

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

	a.  Chapter 10 states a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge 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.  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 age at time of enlistment was noted.  However, many Soldiers enlisted at a younger age and went on to complete their enlistments and receive honorable discharges.  Therefore, the age of the applicant cannot be used as a reason to change a properly issued discharge.

2.  She contends her ex-husband prevented her from returning to her unit.  However, she did not provide any substantive evidence to support her contention.  The fact that she was apprehended by civilian authorities after being AWOL for 816 days raises doubt as to her intent to return to military jurisdiction of her own volition.  Therefore, her service is considered unsatisfactory.

3.  The applicant's voluntary request for discharge under the provisions of chapter 10 of Army Regulation 635-200 to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.

4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  There is no evidence of procedural or other errors that would have jeopardized her rights.

5.  In view of the above, there is insufficient substantive evidence on which to base an upgrade of her under other than honorable conditions discharge to a general discharge under honorable conditions.
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)                                         AR20130000920



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ABCMR Record of Proceedings (cont)                                         AR20130000920



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