IN THE CASE OF:	

		BOARD DATE:	  2 September 2014

		DOCKET NUMBER:  AR20140000503 


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 honorable conditions (general) discharge.

2.  The applicant states more than 20 years have elapsed since her separation.

3.  The applicant 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.  On 22 November 1988, the applicant enlisted in the Regular Army.  On 16 June 1989, following completion of her initial entry training, she was assigned to Headquarters and Headquarters Company, 82d Aviation Brigade, 82d Airborne Division, Fort Bragg, NC.  
3.  On 1 September 1989, she was promoted to the rank/pay grade of private first class/E-3.

4.  On 23 February 1990, before a general court-martial at Fort Bragg, NC, she was convicted of stealing the property of another Soldier valued at about $425.00, by means of force and violence with a firearm, on or about 1 October 1989.  She was sentenced to reduction to the rank/pay grade of private/E-1, forfeiture of all pay and allowances, and confinement for 10 months.  She was confined at Fort Meade, MD, on the same date.

5.  Orders 03-7, issued by the U.S. Army Garrison, Fort Meade, MD on 7 March 1990, reassigned her to the U.S. Army Correctional Brigade, Fort Riley, KS, on or about 15 March 1990, for further confinement.

6.  General Court-Martial Order Number 10, issued by Headquarters, 82d Airborne Division on 18 April 1990, approved the general court-martial sentence to reduction to the rank/pay grade of private/E-1, forfeiture of all pay and allowances, and confinement for 10 months, and ordered its execution.

7.  On 24 September 1990, her company commander notified her in writing of his intent to separate her from the Army, based on her commission of a serious offense.  He cited her conviction of robbery by a general court-martial as the reason for his proposed action.  He advised her that he would recommend she receive an under honorable conditions (general) discharge; however, he also advised her that the separation authority was not bound by his recommendation.  He advised her of her right to consult with counsel, to obtain copies of documents supporting the proposed separation action, and to submit written statements in her behalf.  He advised her that she could waive these rights in writing and could withdraw any such waiver at any time prior to the date the separation authority ordered, directed, or approved her separation.  She acknowledged receipt of the notification on the same date.

8.  On 24 September 1990 in a memorandum to the U.S. Army Correctional Brigade Commander, the applicant stated she was advised of a possible inquiry from the separation authority for her pending separation from military service.  She declined to authorize the release of personal information from her military personnel, finance, and/or medical records necessary to fully respond to the inquiry.  In a separate memorandum, dated 24 September 1990, she declared she wanted to return to duty.  Her primary counselor did not support her return to duty and recommended her discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14.  In an endorsement to her request to return to duty, dated 24 September 1990, her company commander stated she was not a candidate for such status.
9.  On 24 September 1990, her company commander recommended her separation under the provisions of Army Regulation 635-200, paragraph 14-12c, based on her conviction by a general court-martial for a serious offense (robbery).  The battalion commander so directed her discharge and issuance of a General Discharge Certificate.

10.  On 2 October 1990, the applicant requested a conditional waiver.  She stated she had been advised by her consulting counsel of the basis for the contemplated separation action for misconduct and its effects, the rights available to her, and the effect of any action taken by her in waiving her rights.  She voluntarily waived consideration of her case by an administrative separation board contingent upon receipt of a characterization of her service no less favorable than general under honorable conditions.  She elected not to submit statements in her own behalf.  She further stated she was making the request of her own free will and had not been subjected to any coercion whatsoever by any person.  Her records do not contain a response to her request.

11.  Orders 191-2, issued by the U.S. Army Correctional Brigade, Fort Riley, KS on 22 October 1990, discharged her from the Regular Army by authority of Army Regulation 635-200, effective 22 October 1990.

12.  On 22 October 1990, she was discharged accordingly.  Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she was discharged under honorable conditions (general) for misconduct – commission of a serious offense – under the provisions of Army Regulation 635-200, paragraph 14-12c.  She completed 1 year and 3 months of active service.

13.  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.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant believes her discharge should be upgraded because more than 20 years has elapsed since her separation.  The Army has never had a policy whereby a discharge is upgraded due to the passage of time.  Each request is individually considered based on its own merit.

2.  The evidence shows the applicant was convicted of robbery by a general court-martial.  She was properly and equitably discharged in accordance with the statutes and regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized her rights.  All requirements of law and regulation were met and her rights were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects her overall record of service.  Consequently, there is no basis to grant relief in this case.

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)                                         AR20140000503



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ABCMR Record of Proceedings (cont)                                         AR20140000503



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