IN THE CASE OF:	

		BOARD DATE:	  24 July 2014

		DOCKET NUMBER:  AR20130019251 


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 under other than honorable conditions discharge to an honorable discharge, a change of her narrative reason for discharge, and restoration of her rank.

2.  The applicant states that she feels her request for discharge for the good of the service in lieu of trial by court-martial was coerced.  Therefore, the reason for her discharge and character of service should be changed, and her rank should be restored.

3.  The applicant provides no documentary evidence in support of her request.

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 had prior honorable enlisted service in the U.S. Army Reserve from 14 December 1982 through 12 November 1984.  She was awarded military occupational specialty 63B (Light Wheeled Vehicle Mechanic).

3.  The applicant enlisted in the Regular Army on 13 November 1984 for a period of 4 years.  She was assigned overseas to Germany on 8 December 1984 and she attained the rank of specialist four (SP4)/pay grade E-4.

4.  On 30 January 1986, she accepted nonjudicial punishment (NJP) for assaulting a female Soldier by throwing a glass of beer in her face on
10 December 1985.

5.  On 21 April 1986, court-martial charges were preferred against the applicant for violation of the Uniform Code of Military Justice (UCMJ):

* Article 128 for unlawfully striking a female Soldier on the face with her hands, pushing the Soldier with her hands, and punching the Soldier on the chest and in the stomach with her fists on 30 November 1985
* Article 134 for wrongfully committing indecent acts with a female Soldier (three specifications on three different dates)

6.  On 22 April 1986, the applicant consulted with legal counsel.  She was informed of the charges against her for violating the UCMJ and that she was pending trial by court-martial.  She was advised of the rights available to her and of the option to request discharge for the good of the service in lieu of trial by court-martial.

	a.  She voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  By submitting her request for discharge she acknowledged that she was guilty of the charges against her or of lesser included offenses therein contained, which also authorized the imposition of a bad conduct discharge.  The applicant's request for discharge states she was not subjected to coercion with respect to her request for discharge.

	b.  She was advised that she might:

* be discharged under conditions other than honorable
* be deprived of many or all Army benefits
* be ineligible for many or all benefits administered by the Veterans Administration
* be deprived of her rights and benefits as a veteran under both Federal and State laws
* expect to encounter substantial prejudice in civilian life if she were given an under other than honorable conditions discharge
   
   c.  She acknowledged that she understood that, if her request for discharge was accepted, she might be discharged under other than honorable conditions and reduced to the grade of E-1.

	d.  She was also advised that she could submit any statements she desired in her own behalf.  She elected not to submit statements in her own behalf.

	e.  The applicant and her counsel placed their signatures on the document.

7.  The applicant's immediate and intermediate commanders recommended approval of her request for discharge with an Other Than Honorable Discharge.

8.  The separation authority approved the applicant's request for discharge, ordered her reduction to the rank of private/E-1, and directed characterization of her service as under other than honorable conditions.

9.  Ludwigsburg Composite Team, 198th Personnel Service Company, 
38th Personnel and Administration Battalion (Germany), Orders 101-133, dated 12 May 1986, reduced the applicant from the rank of SP4/E-4 to private/E-1 effective 7 May 1986.

10.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she was discharged on 15 May 1986 under the provisions of Army Regulation 635-200 (Enlisted Separations - Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial, with an under other than honorable conditions characterization of service.  She completed 1 year, 6 months, and 3 days of net active service during this period.

11.  A review of the applicant's military personnel records failed to reveal any evidence that the applicant applied to the Army Discharge Review Board for review of her discharge within its 15-year statute of limitations.

12.  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.  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 under other than honorable conditions is normally considered appropriate.

   b.  Chapter 1, paragraph 1-14, provides that when a member is to be discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted grade.

	c.  Chapter 3, 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.

	d.  Chapter 3, 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 her character of service should be upgraded, her reason for discharge should be changed, and her rank should be restored because her request for discharge was coerced.

2.  The evidence of record shows the applicant consulted with legal counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  In fact, in her request she acknowledged her guilt, affirmed she was not subjected to coercion with respect to her request for discharge, and indicated that she understood she might be discharged under other than honorable conditions and reduced to the grade of E-1.  Thus, the evidence of record refutes the applicant's contentions as reasons for changing the character of her service, reason for discharge, and restoring her rank.

3.  The applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was both 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.  Therefore, considering all the facts of the case, the reason for separation and characterization of service were appropriate and equitable.


4.  During the period of service under review, the applicant received NJP on one occasion, she was then charged with offenses punishable by a bad conduct discharge, and she was reduced to private/E-1 prior to discharge.  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 personnel and she is not entitled to either an honorable or general discharge.

5.  Therefore, in view of all 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 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)                                         AR20130019251



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ABCMR Record of Proceedings (cont)                                         AR20130019251



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