IN THE CASE OF:   

		BOARD DATE:       19 June 2014

		DOCKET NUMBER:  AR20130018733


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 other than honorable conditions (UOTHC) discharge to an honorable discharge (HD).

2.  The applicant states:

	a.  although she wanted to make a career in the Army, her husband was very unhappy she enlisted in the service;

   b.  while on leave from Korea, her husband’s attitude worsened and he began to beat and mentally abuse her;
   
   c.  when it was time to report back to duty in Korea, her husband threatened that if she did not leave the military he would take their daughter and she would never see their daughter again;
   
   d.  she was young (22 years old) and did not know what to do when she departed absent without leave (AWOL); and
   
   e.  upgrading her UOTHC discharge would also allow her to receive medical treatment from the Department of Veterans Affairs (VA) for a forty-foot fall injury she sustained on active duty.
   

3.  The applicant provides:

* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* United States Senate Letter 
* Privacy Release Statement
* Self-authored statement
* Xeroxed photograph
* Social Security Administration Letter
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* VA Form 21-0958 (Notice of Disagreement)
* VA Letters dated 5 December 2012 and 26 June 2013 with Enclosures

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's military record shows she enlisted in the Regular Army on 10 August 1995.  She was trained in and served in military occupational specialty 63H (Track Vehicle Repairer).

3.  Her DA Form 2-1 (Personnel Qualification Record) shows she was promoted to private first class (PFC/E-3) on 1 May 1996, and this was her highest grade held. Item 21 (Time Lost Section 972, Title 10 United States Code) shows she was reported AWOL on 6 September 1997 through 3 March 1998, totaling 179 days.

4.  On 9 March 1998, a DA Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from on or about 6 September 1997 until on or about 4 March 1998.


5.  On 9 March 1998, the applicant consulted with legal counsel and she was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to her.  Subsequent to receiving this legal counsel, she voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service – in lieu of trial by court-martial.

6.  In her request for discharge the applicant acknowledged she understood she could be deprived of many or all Army benefits, she could be ineligible for many or all benefits administered by the VA, and she could be deprived of her rights and benefits as a veteran under both Federal and State laws.  She also indicated she understood she could face substantial prejudice in civilian life if she were issued a UOTHC discharge.

7.  On 17 September 1998, the separation authority approved the applicant's request for discharge and directed her discharge under the provisions of Army Regulation 635-200, chapter 10, in the lowest enlisted grade with a UOTHC discharge.

8.  On 29 October 1998, the applicant was discharged accordingly.  She completed 2 years, 8 months, and 21 days of net active service with 179 days of time lost.

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

	a.  Chapter 10 states 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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate.

	b.  Paragraph 3-7a provides that an HD 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 of 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 her UOTHC discharge should be upgraded because she was young and her husband threatened to take their daughter from her if she did not depart AWOL.  These factors are not sufficiently mitigating to support granting the requested relief.

2.  The evidence of record confirms she was charged with the commission of an offense punishable under the UCMJ with a punitive discharge for being AWOL for 179 days.  After consulting with legal counsel, the applicant voluntarily requested discharge in lieu of trial by court-martial.

3.  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.  Her service did not support a general discharge or HD at the time of her discharge, nor would it be appropriate to upgrade her discharge now.

4.  In view of the foregoing, there is no basis for granting the applicant's 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 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)                                         AR20110015734



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ABCMR Record of Proceedings (cont)                                         AR20130018733



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