IN THE CASE OF:	  

		BOARD DATE:	  16 April 2015

		DOCKET NUMBER:  AR20140014860 


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, that her under other than honorable conditions (UOTHC) discharge be upgraded to honorable.

2.  The applicant states:

	a.  Her commanding officer told her the discharge would be automatically upgraded to honorable after 12 months.

	b.  Her chapter 13 discharge reflects continued service at the convenience of the government rather than immediate release from active duty.  After more than 18 years, she experienced an immediate family crisis that led to the chapter 13 action.

	c.  She sustained life-altering injuries while in the military service. 

3.  The applicant provides VA Forms 21-4142 (Authorization and Consent to Release Information to the Department of Veterans Affairs (VA).

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 20 January 1975 and completed training in military occupational specialty (MOS) 91B as a medical specialist.  She reenlisted in December 1977, continued to serve on active duty, and progressed normally until 1992.

3.  On 15 April 1979 she was admitted to the Soldiers with Handicapped Dependents Program.

4.  In November 1990 she was promoted to sergeant first class, pay grade E-7.

5.  A bar to reenlistment was initiated in June 1992 due to weight control and physical fitness testing.

6.  On 7 January 1993 a bar to reenlistment was initiated against the applicant for being absent without leave (AWOL) from 18 November through 17 December 1992 and using cocaine.

7.  On 1 June 1993, after consulting with counsel and being advised of her rights and options, the applicant submitted a formal request, under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 10, for discharge for the good of the service (in lieu of trial by court-martial) for an offense punishable by a bad conduct or dishonorable discharge).  She acknowledged that, if the request was accepted, she could receive a UOTHC discharge.  She acknowledged that such a discharge would deprive her of many or all benefits as a veteran, and that she could expect to experience substantial prejudice in civilian life if she received a UOTHC discharge.  She declined to submit statements in her own behalf.

8.  The chain of command recommended approval of the applicant's request and separation with a UOTHC discharge. The separation authority approved the request and directed the applicant be discharged UOTHC and be reduced to pay grade E-1.



9.  On 11 June 1993 the applicant was so discharged.  Her DD Form 214 shows she had served honorably from 22 December 1977 to 19 March 1992 and had 2 years, 11 months, and 2 days of prior active duty service.  Her awards included the Army Commendation Medal with Oak Leaf Cluster, Army Achievement Medal, Army Good Conduct Medal (4th Award), National Defense Service Medal with bronze service star, Noncommissioned Officer Professional Development Ribbon with Numeral 3, Army Service Ribbon, Overseas Service Ribbon (2nd Award) Driver and Mechanic Badge, and the Marksman Marksmanship Qualification Badge with Rifle Bar.

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

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

	a.  Chapter 10 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 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 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.  There is not now nor has there ever been any provision of law or regulation that provides for automatic upgrading of a discharge.  The applicant provided no substantiating evidence to show that her commander told her that an automatic upgrade would occur.

2.  Her observations about her separation under Army Regulation 635-200, chapter 13 are moot.  She was discharged under chapter 10 because she voluntarily requested discharge in lieu of trial by court-martial 

3.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

4.  The character of the discharge is commensurate with offenses for which she requested discharge to avoid trial by court-martial.

5.  In view of the foregoing there is no basis for granting the applicant's 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)                                         AR20140014860





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ABCMR Record of Proceedings (cont)                                         AR20140014860



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