IN THE CASE OF:	  

		BOARD DATE:	  4 December 2014

		DOCKET NUMBER:  AR20140007345 


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 discharge to an under honorable conditions (general) discharge.  She also requests her DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show her overseas tour and her military occupational specialty (MOS).

2.  The applicant states, in effect:

* she understood her discharge would be upgraded after 6 months
* she has tried, without success, to obtain this upgrade
* the circumstances that led to her separation from the Army resulted from a miscommunication with her former command; she thought, once she had checked out with medical, she was done
* it took almost 2 years before she was arrested, and she had not received any notification from the Army regarding her absent without leave (AWOL) status
* had she known she was in an AWOL status, she would not have gotten a job with the Federal government or with criminal justice agencies
* she has recently earned a masters degree and feels she has changed
* additionally, she feels her previous 2 honorable discharges should be considered

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.  The applicant enlisted in the Georgia Army National Guard (GAARNG) as a specialist/E-4, on 27 August 2002, after a previous period of service in the U.S. Navy.  She was awarded MOS 95B (Military Police), which later converted to MOS 31B.  The highest rank/grade she held while on active duty was 
specialist /E-4.

3.  On 15 March 2003, she was mobilized and reported to Fort Benning, GA.  She was reported AWOL beginning 19 August 2003 until she was returned to military control on 16 February 2004.

4.  On 19 February 2004, court-martial charges were preferred against her for being AWOL during the period 19 August 2003 through 15 February 2004.

5.  On 19 February 2004, she consulted with counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge, and procedures and rights available to her.  Subsequent to receiving legal counsel, she voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

6.  In her request for discharge, she indicated she understood that by requesting discharge she could be deprived of many or all Army benefits, she could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and she could be deprived of her rights and benefits as a veteran under both Federal and State laws.  She also acknowledged there was no automatic upgrading or automatic review of a less than honorable discharge by any Governmental agency or the ABCMR.  To change her discharge, she stated she understood she would need to apply to either the Army Discharge Review Board (ADRB) or the ABCMR.

7.  On 23 February 2004, the separation authority approved her request for discharge in lieu of court-martial and directed she be discharged under other than honorable conditions.

8.  Order 55-15, Headquarters U.S. Army Personnel Control Facility, U.S. Army Armor Center and Fort Knox, dated 24 February 2004 withdrew MOS 31B1O and awarded MOS 88M1O (Motor Transport Operator) as her primary MOS.

9.  On 3 March 2004, she was discharged accordingly.  Her DD Form 214 shows she completed 5 months and 18 days of active military service and shows she had 181 days lost time.

10.  On 1 November 2004, she was discharged from the GAARNG for reaching the end of her service obligation.  She was given an honorable discharge.

11.  Her record does not indicate she performed any foreign service during her period of service in the GAARNG, including the period of service covered by her DD Form 214.

12.  On 25 July 2012, the ADRB denied her request for a discharge upgrade.

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 at any time after the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate.

   b.  Paragraph 3-7a provides that an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance.

   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.

14.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time, states foreign service will show the total amount of foreign service completed during the period covered in block 12c (Net Active Service This Period) of the DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that her discharge be upgraded was carefully considered; however, there was insufficient evidence to support her request.

2.  She was discharged under the provisions of chapter 10, Army Regulation 635-200.  Discharges under this chapter are a result of a voluntary request for discharge in lieu of trial by court-martial.  There is no evidence the applicant was not properly and equitably discharged in accordance with the regulations in effect at the time and that all requirements of law and regulations were not met or that the rights of the applicant were not fully protected throughout the separation process.  

3.  The U.S. Army has never had a policy where a discharge was automatically upgraded.  Additionally, in her request for discharge in lieu of trial by court-martial, she acknowledged there was no automatic upgrade or automatic review of a less than honorable discharge by any Governmental agency or the ABCMR.

4.  Based upon orders, the MOS reflected on her DD Form 214 is correct; therefore, there is no basis to change it.  Additionally, there is no evidence she performed any foreign service during the period covered by her DD Form 214.

5.  Based upon the foregoing, there is insufficient basis to grant 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)                                         AR20140007345





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ABCMR Record of Proceedings (cont)                                         AR20140007345



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