IN THE CASE OF:	  JOHANSEN, SUSAN L. (MALDONADO)

		BOARD DATE:	  10 February 2015

		DOCKET NUMBER:  AR20140008949 


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, in effect, her under other than honorable conditions discharge be upgraded.

2.  The applicant states in January 1980 she was assigned for special duty to the main post motor pool.  During this time, her battalion and company were subdividing everyone.  Headquarters (HQ) Company stated she was no longer with them and sent her to B Company.  However, B Company sent her back to HQ Company every time she was assigned to them.  She had followed instructions during that time and continued to go to her special duty assignment.  She believes it was their error as she thought she did everything within reason of herself.

3.  The applicant provides her DD Form 214 (Certificate of Release or Discharge from Active Duty), DA Form 1811 (Physical Data and Aptitude Test Scores upon Release from Active Duty), and her Under Other Than Honorable Conditions Discharge Certificate.

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 Regular Army on 17 July 1978 and she held military occupational specialty 64C (Motor Transport Operator).  On 15 November 1978, she was assigned to the Headquarters and Headquarters Company (HHC), 57th Signal Battalion, Fort Hood, TX.  On 17 July 1979, she was promoted to the rank/grade of private first class (PFC)/E-3.

3.  Her DA Form 2-1 (Personnel Qualification Record) shows she was absent without leave (AWOL) from her assigned unit from 27 to 27 August 1979 (1 day). Her DA Form 2-1 also shows she was reduced from PFC to private (PVT)/E-1 on 12 September 1979.  

4.  On 19 September 1979, she was assigned to HHC, 54th Signal Battalion, Fort Hood.

5.  On 18 January 1980, she was reported as AWOL from her assigned unit.  On 23 January 1980, she returned to military control at HHC, 54th Signal Battalion.

6.  On 25 January 1980, she was reported as AWOL from her assigned unit and on 25 February 1980 she was dropped from the rolls as a deserter.  On 11 March 1980, she returned to military control at HHC, 54th Signal Battalion.

7.  The specific facts and circumstances surrounding her discharge processing are not available for review with this case.  However, her record contains the DD Form 214 she was issued that shows she was discharged on 18 April 1980, in the rank of PVT, under the provisions of Army Regulation
635-200 (Personnel Separations - Enlisted Personnel), chapter 10 - for conduct triable by court-martial, with an under other than honorable conditions characterization of service.  She completed 1 year, 7 months, and 10 days of net active service and had 52 days of lost time due to being AWOL.

8.  There is no evidence she applied to the Army Discharge Review Board for an upgrade of her discharge within that board's 15-year statute of limitations.

9.  The applicant provides an undated DA Form 1811 wherein it shows she had no physical profiles.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate that he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions is normally considered appropriate.

11.  Army Regulation 635-200, 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. 
   
12.  Army Regulation 635-200, 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's record is void of the specific facts and circumstances surrounding her discharge processing.  However, it appears she was charged with the commission of offense(s) punishable under the Uniform Code of Military Justice with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10 are voluntary requests for discharge in lieu of trial by court-martial.  

2.  In the absence of evidence to the contrary, it is presumed that she voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, she would have admitted guilt and waived her opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Furthermore, in the absence of evidence showing otherwise, it is presumed her discharge accurately reflects her overall record of service.
3.  Her available records show at the time of her discharge she had almost 2 months of lost time due to being AWOL.  This misconduct rendered her service unsatisfactory.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or a general 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)                                         AR20140008949





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ABCMR Record of Proceedings (cont)                                         AR20140008949



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