IN THE CASE OF:	  

		BOARD DATE:	  21 November 2013

		DOCKET NUMBER:  AR20130005571 


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).

2.  She states the type of discharge she received is an injustice.

	a.  She states it is in the public interest to upgrade her discharge.  She is a teacher now.  Students and parents look to her for leadership, which is diminished by having this type of discharge on her record and lends to a poor reputation and few to no career prospects.

	b.  She states her civil rights of due process and life, liberty, and the pursuit of happiness are being violated by the type of discharge she received.  Information available now was not in her record.  

	c.  Since her discharge from the Army, she has lived an exemplary life receiving many accolades.  She is a mother, and a scholar from The University of Georgia, obtaining her bachelor's degree in business education in December 2012.  This degree allows her to teach children at the middle and high school levels.  She has received recognition for her academic performance by receiving National Leadership and Academic Honor society accommodations from Sigma Alpha Lambda, and Delta Epsilon Iota.  She holds a 3.11/4.0 cumulative grade point average/GPA.  She states this is important to note, as she have worked hard to become an asset to society and serve the public interest by becoming a teacher:  a good teacher.  It has taken sacrifice and years of discipline to receive her bachelor's degree in education, and this fact is testament to why relief should be granted, and her discharge upgraded.

	d.  She states that since her discharge is an improper characterization of her current life, it should not haunt the rest of her life by diminishing career prospects and damaging her reputation 25 years later.  This black mark on her record undermines her confidence and that of her future employers and parents.  When she was discharged at the age of 19, she was afraid of being assaulted by a Soldier, Specialist M____, who habitually and publicly bullied her.  He was intimidating and harassed her on many occasions.  For example, he entered her shower in the barracks, but she escaped safely.  Being so young, she didn't know how to deal with this, and experimented with drugs.  She states she has not obtained witness statements to the acts of Specialist M____, since she believes her arguments have become self-evident on the merits of public interest.

3.  She provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States)
* University of Georgia Unofficial Transcript
* Sigma Alpha Lambda Membership Certificate and press release
* Delta Epsilon Iota Lifetime Membership Certificate
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 12 January 1987, the applicant enlisted in the U.S. Army Reserve (USAR) Delayed Enlistment Program (DEP) at 18 years of age.  On 22 June 1987, she was discharged from the DEP and she enlisted in the Regular Army for a period of 4 years on 23 June 1987.  She completed initial entry training and she was awarded military occupational specialty 31L (Wire Systems Installer).
3.  A DD Form 458 (Charge Sheet), dated 24 August 1988, shows she was charged with being absent without leave (AWOL) from 10 July to 23 August 1988.

4.  On 24 August 1988, she signed a memorandum, subject:  Admission of AWOL for Administrative Purposes.

	a.  By signing the memorandum, she acknowledged that she had been advised by her defense counsel that:

* the Government had not received the necessary documentation and/or records with which to obtain a court-martial conviction due to the time required to request and mail records
* counsel could not completely advise her without those records
* counsel was limited by the few available records as to the advice he could give

	b.  She waived all defenses that might have become known had her defense counsel been able to review her records.

	c.  She further acknowledged that she:

* knowingly, willingly, and voluntarily declared that she was AWOL from the U.S. Army from 10 July to 23 August 1988
* was making the admission for administrative purposes only so she could process out of the Army
* realized she could be given a discharge UOTHC
* understood the legal and social ramifications of that type of discharge and what it would mean to her in the future

5.  On 24 August 1988, she consulted with counsel who advised her of the basis for her contemplated trial by court-martial and the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a discharge UOTHC, and the procedures and rights available to her.

6.  After consulting with counsel, she voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.

	a.  She stated she understood she could request discharge for the good of the service because of charges having been preferred against her under the UCMJ which authorized the imposition of a bad conduct or dishonorable discharge.

	b.  She acknowledged:

* she was guilty of the charge against her or a lesser-included offense which also authorized the imposition of a bad conduct or dishonorable discharge
* under no circumstances did she desire further rehabilitation as she had no desire to perform further military service
* she understood she could be discharged UOTHC as a result of her request
* she had been advised of and understood the possible effects of a discharge UOTHC
* as the result of such a discharge, she would be deprived of many or all benefits administered by the Veteran's Administration
* she could be deprived of her rights and benefits as a veteran under Federal and State laws
* she could expect to encounter substantial prejudice in civilian life because of discharge UOTHC

	c.  She elected not to submit statements in her own behalf.

7.  A Characterization of Service Checklist for Administrative Discharge Actions, dated 1 November 1988, shows, in part:

* she was reduced to private/E-2 on 20 June 1988
* she was reduced to private/E-1 on 7 July 1988
* she received nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, on two occasions (details unavailable)

8.  On 4 November 1988, the separation authority approved her request for discharge and directed characterization of her service as UOTHC.  On 24 January 1989, she was discharged as directed.  She was 20 years of age at the time.

9.  Her records are void of documentation showing she was assaulted during her military service.

10.  There is no evidence showing the applicant applied to the Army Discharge Review Board for an upgrade of her discharge within that board's 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth 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 3-7a 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.

	c.  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 available evidence does not support the applicant's request for an upgrade of her discharge.

2.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The record shows she was charged with being AWOL, an offense for which she could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  All requirements of law and regulation were met and her rights were fully protected throughout her discharge processing.

3.  She states she believes the characterization of her service constitutes a violation of her civil rights.  She should note that by voluntarily requesting an administrative discharge, she chose to forego court-martial proceedings that may have resulted in acquittal.  The record shows she was fully aware of the type of discharge she could receive and the potential consequences of such a discharge.  If she has experienced any of those consequences, it is neither a violation of her civil rights nor an injustice.  It is simply the natural outcome of the choice she made in response to the legitimate charge against her.
4.  She provided no documentary evidence substantiating her claim that she was assaulted and her record contains no evidence of the alleged assault.  If such evidence were available, it would not normally be a basis for excusing her unauthorized absence.

5.  The applicant was 18 years of age when she enlisted.  There is no evidence that indicates she was any less mature than other Soldiers of the same age who successfully completed military service.

6.  Her post-service conduct and achievements are noted.  Generally, post-service conduct and achievements are an insufficient basis for upgrading a properly-issued discharge.

7.  Based on her record of indiscipline, which included a 44-day period of AWOL and two citations for NJP, her service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  There is no documentary evidence of mitigating circumstances related to her indiscipline that would warrant changing the characterization of her service.  Therefore, there is an insufficient basis upon which to upgrade her 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)                                         AR20130005571



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ABCMR Record of Proceedings (cont)                                         AR20130005571



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