IN THE CASE OF:	  

		BOARD DATE:	  5 February 2014

		DOCKET NUMBER:  AR20130008971 


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 upgrade of her under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states she served honorably in the Army for more than seven years, she attained the grade of E-5, and missed promotion to grade E-6 by one promotion point.

   a.  She made a tragic error in judgment due to a personal crisis that caused her to run away from the Army, her husband, and her life.  After a short period of time, she returned to the Army to accept her punishment.  She and her husband reconciled, he retired from the Army after 23 years of service, and she continued with her education.

   b.  Her decision to request a discharge in lieu of being court-martialed has caused her anguish on an almost daily basis.  She recently found an Honorable Discharge Certificate that she received when she reenlisted while stationed in Germany.  It gave her pride and the desire to request upgrade of her discharge.

3.  The applicant provides a copy of 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 (RA) on 23 June 1978 for a period of 3 years.  She was awarded military occupational specialty 64C (Motor Transport Operator).

3.  She reenlisted in the RA on 27 February 1981 and was promoted to specialist five/pay grade E-5 on 6 June 1981.  She reenlisted again on 13 January 1984 for a period of 3 years.

4.  On 17 April 1986, court-martial charges were preferred against the applicant for:

* being absent without leave (AWOL) from 25 November 1985 to 18 March 1986
* absenting herself from her unit on 12 November 1985
* failing to go at the time prescribed to her appointed place of duty on 
13 November 1985

5.  On 30 April 1986, the applicant consulted with legal counsel and she voluntarily requested discharge in lieu of trial by court-martial.  The applicant's request for discharge states she was not subjected to coercion with respect to her request for discharge.

   a.  She acknowledged that she was guilty of the charges against her, or of (a) lesser included offense(s) therein contained, which also authorized the imposition of a punitive discharge.  She added that she did not desire further rehabilitation because she had no desire to perform further military service.

   b.  She was advised that she might be discharged under conditions other than honorable, that she might be deprived of many or all Army benefits, that she might be ineligible for many or all benefits administered by the Veterans Administration, that she might be deprived of her rights and benefits as a veteran under both Federal and State laws, and that she might expect to encounter substantial prejudice in civilian life if she was given an under other than honorable conditions discharge.

	c.  The applicant and her counsel placed their signatures on the document.

   d.  The applicant submitted a statement in her own behalf and stated an administrative discharge would be in her family's best interest.  She added that she planned to attend college to obtain a business degree so that she and her husband would be able to run a successful business after he retired from the Army.

6.  The applicant's commander recommended approval of the applicant's request for discharge.

7.  The separation authority approved the applicant's request for discharge and directed her discharge under other than honorable conditions.

8.  The applicant's DD Form 214 shows she entered active duty on 23 June 1978 and she was discharged on 9 June 1986 under the provisions of Army Regulation 635-200 (Enlisted Separations - Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial with an under other than honorable conditions discharge.
   
   a.  She completed 7 years, 7 months, and 14 days of net active service this period and 8 months and 4 days of total prior inactive service.
   
   b.  Item 18 (Remarks) shows she had immediate reenlistments during this period, as follows:

* 23 June 1978 through 26 February 1981
* 27 February 1981 through 12 January 1984

9.  A review of the applicant's military personnel records failed to reveal any evidence that the applicant applied to the Army Discharge Review Board for review of her discharge within its 15-year statute of limitations.

10.  Army Regulation 635-200, in effect at the time, 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, 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.  A discharge under other than honorable conditions is normally considered appropriate.

	b.  Chapter 3, 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.  Chapter 3, 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 contends that her discharge should be upgraded because she served honorably in the Army for more than seven years and made an error in judgment that caused her to request a discharge in lieu of being court-martialed.

2.  Item 18 of the applicant's DD Form 214 shows the period of her enlistment and initial reenlistment in the RA during the period covered by the form.  This shows she had two prior periods of honorable service as one cannot reenlist without first being honorably discharged.

3.  The applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Considering all the facts of the case, the reason for her separation and characterization of her service were appropriate and equitable.

4.  During the period of service under review, the applicant had 113 days 
(i.e., nearly 4 months) of time lost.  Thus, the applicant's service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and she is not entitled to an honorable or general discharge.

5.  Therefore, there is an insufficient basis for granting 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 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)                                         AR20130008971



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ABCMR Record of Proceedings (cont)                                         AR20130008971



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