IN THE CASE OF:	  

		BOARD DATE:  11 March 2014

		DOCKET NUMBER:  AR20130012266 


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 that her under other than honorable conditions (UOTHC) discharge be upgraded to general, under honorable conditions.

2.  The applicant states her mother and brother died within a year of each other and they were in jeopardy of losing the family home.  The checks she wrote were paid in full.  The characterization of her discharge has been a tremendous strain on her life.  She is asking that it be changed.  She is a single parent trying to make a better living for her child.  She has an Army Good Conduct Medal (AGCM) for her first enlistment.  She was never in any trouble prior to her second enlistment.

3.  The applicant provides copies of:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) ending on 26 March 1986
* DD Form 214 ending on 29 June 1989

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 27 September 1982, the applicant enlisted in the Regular Army.  She completed her initial training as a unit supply specialist.  She attained the rank of specialist four, pay grade E-4 and was awarded the AGCM.

3.  On 26 March 1986, the applicant was released from active duty due to expiration term of service (ETS) and the Fiscal Year 1986 Early Release Program.  She completed 3 years and 6 months of creditable active duty service characterized as honorable.  She was transferred to the U.S. Army Reserve (USAR).

4.  On 24 November 1987, the applicant again enlisted in the Regular Army, beginning in the rank of specialist four, pay grade E-4.  She completed training and was awarded military occupational specialty 71L (Administrative Specialist).

5.  On 29 July 1988, the applicant accepted nonjudicial punishment for the wrongful use of cocaine.  She was reduced to private first class, pay grade E-3.

6.  On 1 January 1989, the applicant was again advanced to specialist, pay grade E-4.

7.  On 7 June 1989, the following charges were preferred under the Uniform Code of Military Justice (UCMJ):

	a.  Charge I:  Violation of Article 123a (three specifications) for intent to defraud by wrongfully making and uttering checks totaling $1,196.26.

	b.  Charge II:  Violation of Article 134 for failing to pay a debt to the Army and Air Force Exchange Service in the amount of $693.90.

8.  On 12 June 1989, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a UOTHC discharge, and of the procedures and rights that were available to her.

9.  In her request for discharge, the applicant indicated that she understood that by requesting discharge, she was admitting guilt to the charge against her, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  She further acknowledged she understood that if her discharge request was approved, she could be deprived of many or all Army benefits, that she could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that she could be deprived of her rights and benefits as a veteran under both Federal and State law.

10.  On 15 June 1989, the separation authority approved the applicant’s request for discharge and directed that she receive a UOTHC discharge.

11.  On 27 June 1989, at a mental status evaluation, the applicant's behavior was normal.  She was fully alert and oriented and displayed an unremarkable mood.  Her thinking was clear, her thought content normal and her memory good.  There was no significant mental illness.

12.  On 29 June 1989, the applicant was discharged accordingly.  She had completed 1 year, 7 months, and 6 days of creditable active duty service during this period of active duty.

13.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of her discharge within its 15-year statute of limitations.

14.  Under the UCMJ, the maximum punishment allowed for violation of Article 123a, for the intent to deceive and obtain funds in excess of $500.00 is a dishonorable discharge and confinement for 5 years.

15.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) 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.  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 (emphasis added), 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 contends that her UOTHC discharge should be upgraded to general, under honorable conditions because it has been a tremendous strain on her and she is a single parent trying to make a better life for her child.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize her rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The applicant has not provided any documentary evidence or convincing argument showing that what the Army did was wrong or unjust.

4.  Based on her misconduct, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  Therefore, she is not entitled to an upgrade of her discharge.

5.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20130012266





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130012266



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1