IN THE CASE OF: 

		BOARD DATE:	    26 June 2014

		DOCKET NUMBER:  AR20130018290 


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 the character of her discharge be changed from uncharacterized to honorable.

2.  The applicant states she never signed her DD Form 214 (Certificate of Release or Discharge from Active Duty) nor was she outprocessed.  She further states:

	a.  While attending basic combat training (BCT) and due to her weak arm strength, she was placed into "FITCO" for special physical instruction and readiness.  She was rushed through the end of BCT and she did not receive formal training in ceremonial dress and/or protocol.

	b.  She arrived at Fort Sam Houston but no one knew what to do with her.  She gathered from their reaction that there was a mistake in her orders.  She was then told to get the hernia operation she needed while the matter was sorted out.  The operation was not effective so a second operation was ordered. 

	c.  Her condition remained and she was hurting but she received orders to leave the country.  She was told that she could get a surgery there but would not be granted leave before leaving the country.  She was overwhelmed and scared and she did not feel comfortable with the instructions so she went home.

	d.  She was picked up by two very nice officers who took her to Fort Dix, NJ for final outprocessing.  After an investigation about her situation, she was asked not to out-process.  She was asked to work with a special investigator from the U.S. Army Criminal Investigation Command (CID) who was very interested in her future and took her under his direction.  However, the officer used his CID credentials to lure her into his fantasy world.

3.  The applicant continues narrating the negative experiences she encountered with the CID officer and with the Army in general and concludes by stating that after finally receiving her DD Form 214, she was surprised and hurt because she had been lied to, did not receive a medical discharge, and did not receive separation pay.

4.  The applicant provides a DD Form 214 and a third-party statement of support.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant's discharge be upgraded to honorable.

2.  Counsel states he feels the applicant's uncharacterized discharged was not fair and that she was not given a proper discharge for her time serving her country.  She is in prison for a mistake made 23 years ago.  While in prison, she has been working on being a better person and she received an associate degree while serving her time.  She also has many character letters praising her on what a good person she is and he feels she will make parole and have a new life ahead of her.

3.  Counsel 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 9 August 1989 at 27 years of age for training in military occupational specialty 91A (Medical Specialist).

3.  On 19 January 1990, she departed absent without leave (AWOL) and she remained AWOL until surrendering to civilian authorities on 4 April 1990.

4.  Court-martial charges had been preferred against her for the AWOL offense.

5.  She was granted convalescent leave during the period 27 April – 
25 May 1990.

6.  On 13 June 1990, she departed on excess leave.  The remarks section of the DA Form 31 (Request and Authority for Leave) indicates that it was her desire to be discharged in absentia.  The leave address on the DA Form 31 is shown as Ronceverte, WV.  

7.  In a letter addressed to the applicant's leave address in West Virginia, dated 
2 August 1990, the commander of the Fort Dix, NJ Transition Center informed her of her separation from the U.S. Army effective 2 August 1990.  She was also informed that any pay would be forwarded to her from the U.S. Army Finance Center and Accounting Office, Fort Dix, NJ.  The letter also indicates the separation documents were included with the letter.

8.  The applicant's complete separation proceedings are not available for review. However, her DD Form 214 shows she was discharged on 2 August 1990 after completing 9 months and 9 days of net active service.  It also shows she was discharged under the provisions of Army Regulation 625-200, chapter 10 for the good of the service in lieu of trial by court-martial with her service characterized as "uncharacterized."   It further shows she accrued 75 days of time lost 

9.  There is no evidence in the applicant's available records supporting her contention that she was mistreated or that the separation process was in error or unjust.

10.  There is no evidence indicating she applied to the Army Discharge Review Board for a change in the character of her service.

11.  She provides a third-party statement in which the author states the following:

	a.  He was stationed at Fort Dix, NJ when the applicant arrived there.  She was interviewed by his commander and she was reinstated to full service and duty.

	b.  She was an asset and she did excellent work as needed.  After a few days, she was asked by the CID to help in an area they needed help.  He asked her about the assignment and she stated that she was told not to speak about it. The CID investigator would sign her out of their unit and place her under his authority.

	c.  A few days later, she confided that she felt the investigator's intentions were not moral and/or ethical.  She decided the best thing to do was to call the investigator's main office and report his behavior.  A few hours after the call, she was asked to leave the base.  

	d.  She was not outprocessed, did not receive medical or psychological counseling, and she did not receive travel or separation pay nor did she receive her monthly pay.

	e.  The physical and mental state she was in made him feel partly responsible.  He took her home and helped her get back on her feet.  He has remained her friend over the last 24 years and he hopes the Board takes the time to research her claim and see the truth.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  Chapter 10 provides that a member who commits 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 at any time after court-martial charges are preferred and must include the individual's admission of guilt.  Commanders will ensure that an individual is not coerced into submitting a request for discharge for the good of the service.  Consulting counsel will advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of Department of Veterans Affairs benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A discharge under other than honorable conditions is normally issued to an individual who is discharged for the good of the service.

	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.

13.  Army Regulation 15-185 (ABCMR), paragraph 2-2c states the ABCMR will decide cases on the evidence of record.  It is not an investigative agency.  Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the character of her discharge should be changed from uncharacterized to honorable has been carefully considered.

2.  Her separation proceedings are not available for review.  However, evidence shows she was charged with the commission of an offense(s) punishable under the Uniform Code of Military Justice with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  It is presumed that she voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial after consulting with legal counsel.  It is also presumed that all requirements of law and regulation were met and her rights were fully protected throughout the separation process.

3.  Her record of indiscipline included court-martial charges for AWOL and 
75 days of time lost.  Based on this record of indiscipline and in view of the fact that she must have voluntarily requested to be discharged in order to avoid a trial by court-martial that could have resulted in a punitive discharge, her overall record of service did not support the issuance of an honorable or general discharge by the separation authority at the time and it does not support an upgrade of her discharge now.  She could have/should have received a characterization of under other than honorable conditions.  It appears the uncharacterized discharge listed on her DD Form 214 serves to her benefit.

4.  The applicant's contentions and the third-party statement were considered; however, there is no evidence in her available military records, and she provided none, that substantiate her contentions or the third-party statement's contentions.

5.  In view of the foregoing there is an insufficient evidentiary basis for granting the applicant's request.



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)                                         AR20130018290



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ABCMR Record of Proceedings (cont)                                         AR20130018290



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