IN THE CASE OF:	  

		BOARD DATE:	  7 January 2015

		DOCKET NUMBER:  AR20140007712 


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 a general discharge. 

2.  The applicant states, in effect, her discharge should be upgraded.

* she does not believe the records are in error because she is fully aware of her actions
* she competed basic and advanced individual training; she also did some duty at a duty station 
* she witnessed a sergeant and a fellow Soldier die and the other became severely injured
* she allowed the situation to cloud her judgment and shortly thereafter she made a poor decision 
* if she had to do it all over again, she would still be in the Army 

3.  The applicant did not provide any 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's records show she enlisted in the Regular Army on 6 August 1991.  She completed basic combat training at Fort Jackson, SC and advanced individual training at Fort Sam Houston, TX. 

3.  She was awarded or authorized the Army Service Ribbon, National Defense Service Medal, and Marksman Marksmanship Qualification Badge with Rifle Bar (M-16). 

4.  On 1 September 1992, her chain of command reported her in an absent without leave (AWOL) status.  She was apprehended by military authorities on 21 September 1992.

5.  On 28 September 1992, court-martial charges were preferred against the applicant for:

* one specification of being AWOL
* one specification of sodomy with a child under 16
* ten specifications of uttering checks and failing to maintain sufficient funds
* one specification of indecent acts, liberties with a child

6.  On 28 September 1992, she consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to her.  Following consultation with legal counsel, she requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

7.  In her request for discharge, the applicant acknowledged that:

* she was making this request of her own free will and had not been coerced by any person whatsoever
* she understood by requesting discharge, she was admitting guilt to the charges against her, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a discharge under other than honorable conditions
* she understood if the discharge request was approved, she could be deprived of many or all Army benefits, that she could be ineligible for many or all benefits administered by the Department of Veterans Affairs
* she understood she could be deprived of her rights and benefits as a veteran under both Federal and State laws
* she elected not to submit a statement on her own behalf

8.  On 5 and 6 October 1992, the applicant's immediate, intermediate, and senior commanders recommended approval of the applicant's discharge with the issuance of an under other than honorable conditions character of service. 

9.  Consistent with the chain of command's recommendations, on 7 October 1992, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10, Army Regulation 635-200, directed reduction to the lowest enlisted grade, and an under other than honorable conditions discharge.  The applicant was accordingly discharged on 15 October 1992.

10.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) she was issued shows she was discharged for the good of the service, in lieu of trial by a court-martial with a character of service of under other than honorable conditions.  This form further confirms she completed 1 year, 1 month, and 20 days of creditable active service, and her rank/grade is shown as private/E-1. 

11.  Her separation physical is not available for review with this case.  Additionally, there is no indication in her available records that shows she suffered from any medical or behavioral health conditions during her military service.

12.  There is no indication she petitioned the Army Discharge Review Board for an upgrade of her discharge within that board's 15-year statute of limitations. 

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

	a.  Chapter 10 of that regulation provides, in pertinent part, 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 states 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 states 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’s record shows she was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  

2.  There is no evidence in the applicant's service records and she did not provide any substantiating evidence that shows she was exposed to a traumatic event or suffered from a medical condition and that such condition led her to go AWOL or commit the other charges of sodomy, indecent acts, or uttering checks with insufficient funds, or that she addressed the alleged death of a Soldier and injury to another with medical authorities or that if she did, medical authorities diagnosed her with any conditions. 

3.  Based on her misconduct, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders her service unsatisfactory.  Therefore, she is not entitled to either a general or an honorable discharge.









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)                                         AR20140007712





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ABCMR Record of Proceedings (cont)                                         AR20140007712



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