IN THE CASE OF:	  

		BOARD DATE:	  7 January 2014

		DOCKET NUMBER:  AR20130008741 


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 to general under honorable conditions.

2.  The applicant states she realized she made a bad decision and regrets it to this day.  She wishes she could go back in time and erase the mistake.  She contends that the mistake made her a better person and she has definitely learned from her bad decision.  She adds that she has been a productive citizen since the incident.

3.  The applicant provides 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 on 27 August 1980 and she was awarded military occupational specialty 71L (Administrative Specialist) upon completion of initial entry training.  On 31 March 1983, she reenlisted for a period of 5 years.

3.  She accepted nonjudicial punishment (NJP) on 24 June 1986 for failing to go at the time prescribed to her appointed place of duty.

4.  A DA Form 2496 (Disposition Form), undated, subject:  Award of the Army Good Conduct Medal, shows she was disqualified for award of the Army Good Conduct Medal for the period 27 August 1983 to 26 August 1986 due to misconduct.  Her immediate commander cited that the applicant received numerous counseling statements during the period 18 April-24 June 1986, she was given a bar to reenlistment on 19 June 1986, and she accepted NJP on 24 June 1986 as the reasons for the disqualification.

5.  A U.S. Army Criminal Investigation Command (CID) Final Report of Investigation shows the applicant was investigated for writing and negotiating worthless checks in the amount of $5,880.80.

6.  After coordination with a CID special agent, a representative from the Office of the Staff Judge Advocate concluded there was sufficient evidence to believe the applicant committed the offense of uttering worthless checks.

7.  The applicant's separation proceedings are not available for review.  However, her DD Form 214 shows she was discharged on 8 June 1988 in the rank/grade of private/E-1 after completing 7 years, 7 months, and 12 days of active service.  It also shows she was discharged 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, with her service characterized as under other than honorable conditions.

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

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who commits 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 at any time after court-martial charges are preferred and must include the individual's admission of guilt.  Commanders will ensure that an individual is not coerced into submitting a request for discharge for the good of the service.  Consulting counsel will advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of Department of Veterans Affairs benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A discharge under other than honorable conditions is normally issued to an individual who is discharged for the good of the service.

10.  Army Regulation 635-200, 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 under other than honorable conditions to general under honorable conditions has been carefully considered.

2.  Her separation proceedings are not available for review.  It appears that she was charged with the commission of an offense(s) punishable under the Uniform Code of Military Justice 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.  It is presumed that she voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial after consulting with legal counsel.  It is also presumed that all requirements of law and regulation were met and her rights were fully protected throughout the separation process.

3.  Her record of indiscipline included NJP and court-martial charges for uttering worthless checks in the amount of $5,880.80.  Based on her record of indiscipline and in view of the fact that she voluntarily requested to be discharged in order to avoid a trial by court-martial that could have resulted in a punitive discharge, her overall record of service did not support the issuance of a general discharge by the separation authority at the time and it does not support an upgrade of her discharge now.

4.  Based on the forgoing evidence, there is no basis to grant the requested relief.


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)                                         AR20130008741



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ABCMR Record of Proceedings (cont)                                         AR20130008741



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