IN THE CASE OF:	   

		BOARD DATE:	  24 October 2013

		DOCKET NUMBER:  AR20130003113 


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 (UOTHC) to a general discharge.

2.  The applicant states she has felt since the time of her discharge that she did not warrant a discharge UOTHC.

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.  The applicant enlisted in the Regular Army in pay grade E-1 on 16 February 1989.  She completed training and was awarded military occupational specialty 92B (medical laboratory specialist).  She was advanced to pay grade E-2 on 16 August 1989.

3.  She was reported absent without leave (AWOL) on 28 December 1989 and was dropped from the rolls on 29 January 1990.  On 5 February 1991, she surrendered to military authorities and was returned to military control.

4.  On 13 February 1991, a DD Form 458 (Charge Sheet) was prepared by the Commander, Special Processing Company, U.S. Army Personnel Control Facility, Fort Knox, KY.  She was charged with one specification of being AWOL from 28 December 1989 through 5 February 1991.

5.  On 13 February 1991 after consulting with counsel, she voluntarily requested 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.  In doing so, she acknowledged that she had not been coerced with respect to her request for discharge.  She admitted she was guilty of the charge against her and had no desire for further military service.  She also acknowledged that she could be discharged under conditions other than honorable and furnished a discharge UOTHC, she could be deprived of many or all Army benefits as a result of the issuance of such a discharge, and she could be ineligible for many or all benefits administered by the Department of Veterans Affairs.  She waived her rights and elected not to submit a statement in her own behalf.

6.  On 1 March 1991, the separation authority approved the applicant's request for discharge for the good of the service and directed the issuance of a discharge UOTHC and reduction to pay grade E-1.

7.  She was discharged accordingly on 8 April 1991 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  She completed 1 year and 16 days of net active service with 404 days of lost time.

8.  There is no indication 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 provides that a member who had 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 in lieu of trial by court-martial at any time after charges had been preferred.  A discharge UOTHC was normally considered appropriate.  

	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 was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was charged with being AWOL for 404 days.

2.  She was charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge.  Discharge actions processed under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  She waived her opportunity to appear before a court-martial to prove her innocence.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects her overall record of service.

3.  Her contention and request for an upgrade of her discharge were carefully considered.  However, she has provided no evidence or a convincing argument to show her discharge should be upgraded and her military records contain no evidence that would entitle her to an upgrade of her discharge.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant 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)                                         AR20130003113



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ABCMR Record of Proceedings (cont)                                         AR20130003113



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