IN THE CASE OF:	  

		BOARD DATE:	  14 September 2013

		DOCKET NUMBER:  AR20130003653 


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.

2.  The applicant states she:

* lived in a hostile environment 
* feared for the safety of herself and her children
* had an abusive spouse
* did not have reliable child care/assistance
* the discharge received has imposed significant limitations on her Department of Veterans Affairs (VA) benefits, employment opportunities, and her health

3.  The applicant provides a self-authored statement. 

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 30 July 1980.  She completed basic combat training and advanced individual training and was awarded military occupational specialty 71L (Administrative Specialist).  The highest rank/grade she attained while serving on active duty was private first class/E-3.

3.  On 14 May 1986, charges were preferred against the applicant for being absent without leave (AWOL) during the period of 11 June 1982 through 6 May 1986. 

4.  On 14 May 1986, the applicant consulted with counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under other the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge, and of the procedures and rights available to her.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial.

5.  In her request for discharge, the applicant indicated that she understood that by requesting discharge, she was admitting guilt to the charge against her.  She further acknowledged she understood that if her discharge request was approved, she could be ineligible for many or all of the benefits administered by the VA, and that she could be deprived of her rights and benefits as a veteran under both Federal and State law.  She elected not to submit a statement in her own behalf.

6.  On 5 June 1986, the separation authority approved the applicant’s request for discharge and directed that she receive an under other than honorable conditions discharge.

7.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued at that time shows she was discharged on 24 June 1986 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service, under conditions other than honorable.  She completed 2 years of net active service with 1,425 days of lost time due to being AWOL.

8. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of her discharge within its 15-year statute of limitations.

9.  There is no evidence the applicant sought assistance through her chain of command or any other military official regarding childcare or spousal abuse issues.

10.  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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  An under other than honorable conditions discharge is normally considered appropriate.

	a.  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.  

	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 request for an upgrade of her discharge was carefully considered; however, there is insufficient evidence to support her request.

2.  There is no evidence that shows the applicant was not properly and equitably discharged in accordance with the regulations in effect at the time and that all requirements of law and regulations were not met or that the rights of the applicant were not fully protected throughout the separation process.  

3.  The applicant was discharged for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200.  Discharges under the provisions of this chapter are voluntary requests for discharge in lieu of trial by court-martial.

4.  Based on her record of indiscipline, which includes 1,425 days of lost time due to AWOL, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Her misconduct rendered her service unsatisfactory.  Therefore, the applicant is not entitled to an upgrade in her discharge.

5.  The ABCMR does not grant request for discharge upgrades solely for the purpose of making the applicant eligible for veteran’s benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, granting veteran’s benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for benefits should be addressed to the VA.

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 ther 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)                                         AR20130003653



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ABCMR Record of Proceedings (cont)                                         AR20130003653



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