BOARD DATE:	  1 April 2014

		DOCKET NUMBER:  AR20130013883 


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 discharge under other than honorable conditions be upgraded to a more favorable discharge.

2.  The applicant states, in effect, that she was partying with a group of friends and another female Soldier accused her of attempting to kiss her.  Because of her (the applicant’s) state of mind at the time she was unaware of most things that may or may not have taken place; however, the alleged charge gave the company reason to accuse her of other incidents including indecent assault, drunk and disorderly conduct, fraternization and unlawful entry.  She goes on to state that the circumstances forced her to request discharge under chapter 10 in order to avoid a court-martial and jail time.  She further states that she also believed that female Soldiers were being attacked in her battalion and that she would be found guilty no matter what.  She continues by stating that she had an accomplished career and deserves a better discharge.

3.  The applicant provides a three-page statement explaining her application, a five-page summary of accomplishments, her Department of Veterans Affairs (VA) Rating Decision, and 23 third-party character letters.

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 1 October 1982 for a period of 3 years and training as a tactical wire operations specialist.  She successfully completed her training and remained on active duty through a series of continuous reenlistments and was promoted to the pay grade of E-7 on 
1 October 1996.

3.  The facts and circumstances surrounding her administrative discharge are not present in the available records as they were loaned to the VA in Albuquerque, New Mexico in 1997.  However, her records do contain a DD Form 214 (Certificate of Release or Discharge from Active Duty) which shows that she was serving in Germany when she was discharged under other than honorable conditions in the pay grade of  E-1 on 11 April 1997 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  She had served 14 years, 6 months, and 11 days of active service.

4.  There is no evidence in the available records to show that she applied to the Army Discharge Review Board (ADRB) for an upgrade of her discharge within that board’s 15-year statute of limitations.

5.  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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser-included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  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.  In the absence of the facts and circumstances surrounding her administrative discharge, it must be presumed that 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.

2.  After being afforded the opportunity to assert her innocence before a trial by court-martial, she would have voluntarily requested discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on her record.  In doing so, she would have admitted guilt to the charges against her.

3.  It is reasonable to presume that applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations and that the type of discharge directed was appropriate.

4.  The applicant's contentions, supporting documents, and her overall record of service have been noted; however, without the specifics of her offenses, they are not sufficiently mitigating to warrant relief under the circumstances.  

5.  In view of the foregoing, there is an insufficient evidentiary 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)                                         AR20130013883





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ABCMR Record of Proceedings (cont)                                         AR20130013883



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