IN THE CASE OF:	  

		BOARD DATE:	    22 May 2014

		DOCKET NUMBER:  AR20130016102 


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 a general discharge.

2.  The applicant states her discharge was based on one isolated incident and the rest of her service was exceptional.  She states she was young and dumb.

3.  The applicant provides no additional evidence.

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 8 March 1976 for a period of 3 years and training as an electronic warfare/signal intelligence non-communications Interceptor.  She completed basic training at Fort McClellan, Alabama, and was transferred to Fort Devens, Massachusetts, to undergo advanced individual training.

3.  She completed her training and was transferred to Fort Hood, Texas, for her first assignment on 24 November 1976.

4.  On 1 September 1977, she reenlisted for a period of 3 years and she married another service member on 9 September 1977.  On 20 September 1977, she departed for the Defense Language Institute at the Presidio of Monterrey, California, for duty as a Russian Language student.

5.  On 22 January 1979, she submitted a request for assignment with her spouse in Europe.  On 17 April 1979, she was transferred to Goodfellow Air Force Base, Texas, for additional training

6.  The applicant was absent without leave (AWOL) on 15 June 1979 and remained absent in desertion until she surrendered to military authorities at Goodfellow Air Force Base on 28 November 1979.  She was transferred to Fort Sill, Oklahoma, where charges were preferred against her.

7.  On 18 December 1979 after consulting with defense counsel, the applicant submitted a request for discharge 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.  She indicated she was making the request of her own free will without coercion from anyone and that she was aware of the implications attached to her request.  She also admitted she was guilty of the charges against her or of lesser-included offenses that authorized the imposition of a bad conduct or dishonorable discharge.  She acknowledged she understood she could receive a discharge under other than honorable conditions and she might be deprived of all benefits as a result of such a discharge.  She elected not to submit a statement in her own behalf.

8.  On 17 January 1980, the appropriate authority (a brigadier general) approved her request and directed her discharge under other than honorable conditions.

9.  On 24 January 1980, she was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  She completed 3 years, 5 months, and 4 days of active service and accrued 166 days of lost time due to AWOL.

10.  There is no evidence in the available records showing she applied to the Army Discharge Review Board for an upgrade of her discharge within that board's 15-year statute of limitations.

11.  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 lesser-included offenses which authorize 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 3-7b 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 contentions and supporting documents have been noted; however, they are not sufficiently mitigating to warrant relief under the circumstances given the length of her absence and the lack of mitigating circumstances at the time.

2.  The 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.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

3.  After being afforded the opportunity to assert her innocence before a trial by court-martial, she 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 admitted guilt to the charges against her.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant 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 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)                                         AR20130016102



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ABCMR Record of Proceedings (cont)                                         AR20130016102



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