IN THE CASE OF:  

		BOARD DATE:  22 October 2013

		DOCKET NUMBER:  AR20130004092 


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 general.

2.  The applicant states:

	a.  She was told her discharge would be upgraded to general after 6 months.

	b.  The reason she was absent without leave (AWOL) was because of the racial situation where she was in training.  She was told that it would be dangerous to go anywhere when she had time off because she was black.  It was foolish to be AWOL, but at the time it wasn't fair.  The recruiting officer had told her she would be traveling in and out of the United States, but in reality she had signed up to just have the racial tension worse than in Columbus, Ohio, where she was born and raised.

	c.  She has a letter from the Department of Veterans Affairs (VA) stating she has an honorable discharge, but she was informed she still had a less than honorable discharge when she went to the VA clinic.

3.  The applicant provides:

	a.  VA letter, dated 14 December 2007, showing she was released from active duty (REFRAD) on 12 March 1974.  The character of her discharge is listed as "Under Honorable Conditions";

	b.  Standard Form 180 (Request Pertaining to Military Records), dated 19 December 2007; and

	c.  VA Loan Guaranty Eligibility Center letter, dated 5 March 2008, showing a Certificate of Eligibility was enclosed.

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 on 8 March 1968.  She did not complete training and was not awarded a military occupational specialty.

3.  On 16 January 1974, charges were preferred against the applicant for two specifications of AWOL for the periods 4 May to 5 August 1968 and 13 August 1968 to 11 January 1974.

4.  She consulted with counsel and she voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  She acknowledged she understood the elements of the charges against her and admitted she was guilty of at least one of the offenses which authorized a punitive discharge.  She also acknowledged she understood she might receive a discharge UOTHC which would deprive her of many or all Army benefits and she might be ineligible for veterans' benefits administered by the VA.  She further acknowledged she understood she could expect to encounter substantial prejudice in civilian life if she were issued a discharge UOTHC.  She also indicated she had received legal advice, but her request for discharge had been made voluntarily and it reflected her own free will.  She elected not to submit a statement in how own behalf.

5.  The applicant's chain of command recommended disapproval of her request; however, the separation authority approved her request on 28 February 1974 and directed the issuance of an Undesirable Discharge Certificate.

6.  On 12 March 1974, the applicant was so discharged.  Her DD Form 214 (Report of Separation from Active Duty) shows she was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  Her character of service is shown as "Under Other Than Honorable Conditions."  She completed a total of 4 months and 5 days of active duty service with 670 days of lost time.

7.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of her discharge.

8.  In support of her request, she provided a VA letter showing she was REFRAD on 12 March 1974 and the character of her service was "Under Honorable Conditions."

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

	a.  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 UOTHC is 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 is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence supporting the applicant's assertions that she was told her discharge would be changed to general after 6 months.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.  

2.  There is no evidence supporting her assertions that she was told because she was black it would be dangerous to go anywhere when she had time off.  She had an opportunity to raise this issue as a mitigating circumstance when she requested discharge, but she failed to do so.

3.  There is no supporting evidence to show she was REFRAD under honorable conditions on 12 March 1974.  Her DD Form 214 shows she was discharged on 12 March 1974 under other than honorable conditions.

4.  The applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, even after appropriate and proper consultation with legal counsel, indicates she wished to avoid trial by court-martial and the punitive discharge she might have received.  Her service was characterized by the nature of her offenses and the circumstances of her separation and does not warrant an upgrade to general.

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL SHEARING

____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)                                         AR20100027085



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ABCMR Record of Proceedings (cont)                                         AR20130004092



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