BOARD DATE:	  27 August 2013

		DOCKET NUMBER:  AR20130001504 


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 a general or an honorable discharge. 

2.  The applicant states she felt wrongly represented by her noncommissioned officer who did not honor her medical leave separation. 

3.  The applicant did not provide any 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's records show she enlisted in the Regular Army on 24 February 2004 and held military occupational specialty 88M (Motor Transport Operator). 
3.  She was awarded or authorized the National Defense Service Medal, Global War on Terrorism Service Medal, and Army Service Ribbon.  She was assigned to Fort Irwin, CA.

4.  The complete facts and circumstances surrounding the applicant's discharge processing are not available for review with this case.  However, her record contains:

	a.  Orders 167-0030, issued by Headquarters, National Training Center, Fort Irwin, CA, on 16 June 2006, directing her to report to the U.S. Army Transition Center, Fort Irwin, CA, for the purpose of outprocessing, and subsequent discharge from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), effective 29 June 2006.

	b.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows she was discharged, on 29 June 2006, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial with an under other than honorable conditions discharge.  This form also shows she completed 2 years, 4 months, and 6 days of creditable active service and her rank/grade is shown as private/E-1. 

5.  On 29 September 2009, the Army Discharge Review Board denied her petition to change her characterization of service and reason for discharge. 

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

	a.  Paragraph 1-14 of the regulation in effect at the time stated that when a member was to be discharged under other than honorable conditions, the convening authority would direct an immediate reduction to the lowest enlisted grade.

	b.  Paragraph 3-7a states 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 states 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 is void of the facts and circumstances that led to her discharge.  However, her record contains a DD Form 214 that shows she was discharged on 29 June 2006 under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by court-martial with an under other than honorable conditions characterization of service.

2.  The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200, required the applicant to voluntarily, willingly, and in writing request discharge from the Army in lieu of trial by court-martial.  It is presumed that all requirements of law and regulation were met and her rights were fully protected throughout the separation process.  The applicant provided no information that would indicate the contrary.  Further, it is presumed that the applicant's discharge accurately reflects her overall record of service.

3.  She was discharged in lieu of trial by court-martial; therefore, her service does not appear to have met the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, she is not entitled to 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)                                         AR20130001504



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ABCMR Record of Proceedings (cont)                                         AR20130001504



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