IN THE CASE OF:	  

		BOARD DATE:	  20 May 2014

		DOCKET NUMBER:  AR20130017123 


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 she requested marital counseling and was denied.  Her superior told her they had no one to baby sit her marriage.  Subsequently, her husband abused her which led to her being absent without leave (AWOL).

3.  The applicant provides no additional documentary 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.  On 23 March 1976, the applicant enlisted in the Regular Army.  She completed her initial training as a food service specialist.
3.  On 30 August 1976, the applicant accepted nonjudicial punishment for failing to go to her prescribed place of duty at the proper time.

4.  On 12 August 1977, charges were preferred against the applicant under the Uniform Code of Military Justice (UCMJ) for violation of Article 86 for being AWOL from on or about 11 June to 10 August 1977.

5.  On or about 16 August 1977, 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.

6.  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 Veterans Administration (VA), and that she could be deprived of her rights and benefits as a veteran under both Federal and State laws.

7.  On 30 September 1977, the separation authority approved the applicant’s request for discharge and directed that she be issued a UOTHC Discharge Certificate.  On 12 October 1977, the applicant was discharged accordingly.  She had completed 1 year, 4 months, and 21 days of creditable active service and she had 60 days of lost time.

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

9.  Under the UCMJ, the maximum punishment allowed for violation of Article 86, for AWOL of more than 30 days is a dishonorable discharge and confinement for 1 year.

10.  Army Regulation 635-200 (Personnel Separations) 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 trail by court-martial.  A discharge UOTHC 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.  The applicant contends that her UOTHC discharge should be upgraded to general, under honorable conditions because she was not afforded marriage counseling while in the military service.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized 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 convincing argument or documentary evidence to sufficiently support her request.

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)                                         AR20130017123



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ABCMR Record of Proceedings (cont)                                         AR20130017123



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