IN THE CASE OF:	  

		BOARD DATE:	  24 June 2014

		DOCKET NUMBER:  AR20130017872 


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 honorable conditions discharge to an honorable discharge.

2.  The applicant states she was 23 years of age and stupid when she made a mistake.  She is now 55 years old with six grandchildren and she has learned many lessons.  She adds that her record is clean and she would like to show it to her children and grandchildren.

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 was appointed as a commissioned officer in the Regular Army, in the rank of second lieutenant, on 13 May 1979.  At that time she was one day short of 21 years of age.  

   a.  Upon completion of training she was awarded specialty 13A (Field Artillery Officer, General) and specialty 13D (Artillery Target Acquisition Officer) and was assigned to Fort Sill, OK.

   b.  She was promoted to first lieutenant on 21 February 1981.

3.  On 28 August 1981, the Commander, U.S. Army Field Artillery Center and Fort Sill, offered the applicant nonjudicial punishment (NJP) for six specific offenses that included failure to report illegal use of marijuana, three specifications of conduct unbecoming an officer, lying to the brigade commander, and communicating a threat.  The applicant declined NJP.

4.  On 7 October 1981, court-martial charges were preferred against the applicant for violations of the Uniform Code of Military Justice (UCMJ) -

* Article 92 – Failure to obey order or regulation (one specification)
* Article 133 – Conduct unbecoming an officer and gentlewoman (seven specifications)

5.  On 7 October 1981, the applicant voluntarily tendered her resignation from the Army for the good of the service under the provisions of Army Regulation
635-120 (Officer Resignations and Discharges), chapter 5 (Resignation for the Good of the Service).

   a.  Her request shows she was not subjected to coercion with respect to her resignation and that she fully understood the implications of the action.  It also shows she had consulted with legal counsel, and that she was fully advised and counseled in the matter by an officer of the Judge Advocate General's Corps.
	
   b.  She was advised that she might be discharged under conditions other than honorable and she might be deprived of many or all benefits administered by the Veterans Administration if she were given a discharge under other than honorable conditions.

	c.  She was afforded an opportunity to present matters in explanation, mitigation, or defense of her case.  She elected not to submit any statements.

	d.  The applicant placed her signature on the document.
6.  The applicant's immediate and intermediate commanders recommended approval of her resignation from the Army with her service characterized as under other than honorable conditions.  Her resignation for the good of the service was forwarded to Headquarters, Department of the Army (HQDA).

7.  On 19 November 1981, the Deputy Assistant Secretary (DA Review Boards and Personnel Security), Office of the Assistant Secretary, Washington, DC, approved the recommendation of the DA Ad Hoc Review Board that the applicant's resignation for the good of the service with discharge under other than honorable conditions be approved.  Accordingly, the applicant was discharged from the Army effective 4 December 1981.

8.  The applicant submitted a request to the Army Discharge Review Board (ADRB) for upgrade of her discharge.

   a.  By unanimous decision, the ADRB found the applicant's discharge was proper. 

   b.  By majority decision, the ADRB found the characterization of her service was inequitable and voted to upgrade the characterization of her service to under honorable conditions.  (A minority view voted not to change the characterization of her service.)

9.  On 14 June 1983, the applicant was provided a copy of the ADRB decision document in order for her to submit a rebuttal to the minority view of the board's statements, to be considered by the Secretarial Reviewing Authority prior to taking action on her case.  There is no evidence the applicant submitted matters for consideration.

10.  On 25 November 1983, the applicant was notified that the Secretary of the Army directed that her discharge be changed to Under Honorable Conditions (General).  Accordingly, her DD Form 214 was voided and she was issued a new DD Form 214.

11.  The DD Form 214 she was issued shows she entered active duty on 13 May 1979 and she was discharged under honorable conditions on 4 December 1981 under the provisions of Army Regulation 635-120, chapter 5, based on conduct triable by court-martial.  She had completed 2 years, 6 months, and 22 days of net active service during this period.

12.  Army Regulation 635-120, in effect at the time, prescribes procedures whereby an officer on active duty may tender a resignation or be discharged.  Chapter 5 provides that an officer may submit a resignation for the good of the service when general court-martial charges are preferred against them; he/she is under a suspended sentence of dismissal; or he/she elects to tender their resignation prior to general court-martial charges being preferred against him/her under the UCMJ and prior to being recommended for elimination.

   a.  A resignation for the good of the service submitted by an officer when court-martial charges are preferred against him/her will be forwarded by the commander exercising general court-martial jurisdiction, direct to HQDA.

   b.  Commanders will ensure that there is no element of coercion in submitting a resignation for the good of the service.  The officer concerned will be afforded the opportunity to consult with qualified legal counsel and will be allowed a reasonable period of time to make a personal decision when a resignation is contemplated.  Legal counsel will advise the officer of the implications of his/her voluntary action.

13.  Army Regulation 635-100 (Personnel Separations - Officer Personnel), in effect at the time, provides policy and procedures for separating officers from active duty.

	a.  Chapter 1, paragraph 1-6, provides that an officer's service is characterized as honorable when the officer is released from active duty and returned to the U.S. Army Reserve or Army National Guard control, unless circumstances exist or as directed by the Secretary of the Army.

   b.  An officer's service normally will be characterized as under honorable conditions or under other than honorable conditions when such a determination is made by a HQDA Active Duty Board for officers being released from active duty because of misconduct.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her discharge under honorable conditions should be upgraded to an honorable discharge because she was young and immature and her record is (otherwise) clean.

2.  Considering the applicant successfully completed training, was awarded two specialties, and was promoted to first lieutenant, her contention that she was immature is not supported by the evidence of record.  In addition, there is no evidence to indicate the applicant was any less mature than other Army officers of the same age who successfully completed military service.

3.  The applicant's resignation for the good of the service under the provisions of Army Regulation 635-120, chapter 5, 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 was appropriate.

4.  The applicant subsequently requested an upgrade of her discharge and her case was reviewed.  Based on the review, it was determined the characterization of her service was inequitable.  As a result, the Secretary of the Army upgraded the characterization of her service to under honorable conditions.

5.  During the period of service under review, the applicant was charged with failure to obey an order or regulation and conduct unbecoming an officer and gentlewoman (seven specifications).  She elected to resign her commission in lieu of trial by court-martial.  Thus, the applicant's record of service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army officers and she is not entitled to an honorable discharge.

6.  Therefore, in view of the foregoing, 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 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)                                         AR20130017872



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ABCMR Record of Proceedings (cont)                                         AR20130017872



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