IN THE CASE OF:	  

		BOARD DATE:	  30 January 2014

		DOCKET NUMBER:  AR20130008356 


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 under other than honorable conditions discharge.

2.  The applicant states she accepted the discharge that was given to her because of personal reasons.  Her husband at the time wanted her out of the military.  He was very jealous of other Soldiers and threatened to get her out of the Army.  She regretted the decision to get out because the military had no proof that she did anything wrong.  The only thing they had was that they received a phone call stating she was involved.  She cooperated with her superiors and did everything she was told.  There was no connection between her and the situation.  

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Letter of recognition
* Certificate of achievement
* Certificates of completion
* Medical Insurance Billing and Coding Diploma
* Certification as a judge of election
* Résumé
* Multiple character reference letters
* College transcripts

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 29 March 1989 and she held military occupational specialty 71L (Administrative Specialist).  She attained the rank/grade of private (PV2)/E-2. 

3.  She was awarded or authorized the Army Service Ribbon and Marksman Marksmanship Qualification Badge with Rifle Bar.

4.  On 16 January 1990, her chain of command preferred court-martial charges against her for one specification of stealing U.S. currency (traveler's checks) from another Soldier and one specification of wrongfully making a false statement related to signing her name on the traveler's checks.

5.  Her chain of command recommended trial by a special court-martial empowered to adjudge a bad conduct discharge.

6.  On 23 January 1990, the applicant consulted with legal counsel and she was advised of the basis for the contemplated trial by court-martial for an offense punishable under the Uniform Code of Military Justice (UCMJ) that authorized the imposition of a bad conduct or a dishonorable discharge, the possible effects of a discharge under other than honorable conditions if her request for discharge in lieu of trial by court-martial were approved, and of the procedures and rights available to her.  Following consultation with legal counsel, she requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

7.  In her request for discharge, she indicated:

* she was making this request of her own free will and she had not been subjected to any coercion whatsoever by any person
* she understood that by requesting discharge she was admitting guilt to the charges against her or of a lesser-included offense that also authorized the imposition of a bad conduct discharge or a dishonorable discharge
* she acknowledged she understood if her discharge request was approved she could be deprived of many or all Army benefits and she could be ineligible for many or all benefits administered by the Department of Veterans Affairs
* she acknowledged she understood she could be deprived of her rights and benefits as a veteran under both Federal and State laws
* she stated that under no circumstances did she desire further rehabilitation and she had no desire to perform further military service
* she elected not to submit a statement on her own behalf

8.  On 26 and 30 January 1990, her immediate, intermediate, and senior commanders recommended approval of the discharge action with the issuance of an under other than honorable conditions discharge.

9.  On 30 January 1990, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200,
chapter 10, and directed the issuance of an under other than honorable conditions discharge and reduction to the lowest enlisted grade.

10.  The applicant was discharged on 13 February 1990.  Her DD Form 214 shows she was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial with a characterization of service of under other than honorable conditions.  Her
DD Form 214 further shows she completed 10 months and 15 days of creditable active service.

11.  There is no indication she petitioned the Army Discharge Review Board for an upgrade of her discharge within that board's 15-year statute of limitations.

12.  She submitted:

	a.  Multiple certificates of achievement and completion, and/or letters of recognition recognizing her accomplishments or completion of training.

	b.  Diploma and college transcripts reflecting her post-service educational accomplishments.
	c.  Two letters revealing her selection as a democratic judge of election in the State of Illinois.

	d.  A résumé detailing her education, work history, honors, and distinctions.

	e.  Character reference letters from individuals who comment on her intelligence, ability, dedication, and professionalism.  She is also described a church-going individual who is also resilient and motivated.

13.  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 under other than honorable conditions 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 applicant's record shows she was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  She voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and her rights were fully protected throughout the separation process.  Further, her discharge accurately reflects her overall record of service.

2.  Contrary to her belief that she accepted the discharge for personal reason, the evidence of record clearly shows she requested rather than accepted the discharge.  When her chain command preferred court-martial charges against her, she exercised her right to consult with counsel.  Her options were to face the court-martial that could have adjudged a dishonorable or a bad conduct discharge or submit a voluntary request for discharge.  She voluntarily chose the discharge.  She could have faced a court-martial if she believed she was innocent of the charges.

3.  Although her post-service academic and professional achievements are noteworthy, they do not mitigate the serious charges she faced.  Based on her record of indiscipline, the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered her service unsatisfactory.

4.  In view of the foregoing, there is no basis for granting the applicant 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)                                         AR20130008356



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ABCMR Record of Proceedings (cont)                                         AR20130008356



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