IN THE CASE OF:	  

		BOARD DATE:	  28 May 2015

		DOCKET NUMBER:  AR20140018293


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, an upgrade of her under other than honorable conditions (UOTHC) discharge to an honorable discharge (HD) or a general discharge (GD).

2.  The applicant states, in effect:

a. She made a terrible mistake 34 years ago and now asks for forgiveness.  She has dealt with the shame for many years, but it was not until she was considering acquiring a concealed weapons permit did it really hit home.

b. Growing up, her dad was an alcoholic and was very violent especially toward her mother.  She joined the military to get away and serve her country.

c. While stationed in Germany, she tried to call but could not locate her mother; therefore, she panicked and thought that her father had carried out his threats and killed her.

d. She obtained leave and found out that her mother and little brother were at her aunt's house.  However, since her mother had very little money, she eventually went home.  Since the applicant did not trust her father, she stayed home.

e. She was told that if she stayed gone for at least 30 days, the Army would let her out.  She was 19 years old at the time and did not realize how her discharge would affect her for her entire life.

f. She did not leave the military because she did not like it, but she believed she had no other choice at 19 years old.

g. She was a good Soldier and loved being in the military.  Although she was in the military for less than one year, she received a letter of appreciation and a letter of commendation during her short time of service.

h. She acknowledges that her choice was wrong, but believed at the time, she was protecting her mother.

3.  The applicant provides:

* a DD Form 214 
* a self-authored letter
* a letter from her mother
* letters of reference
* letter of commendation
* letter of appreciation
* copies of her DA Form 2-1 (Personnel Qualification Record)
* a DD Form 4 (Enlistment or Reenlistment Agreement)

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 27 March 1979, the applicant enlisted in the Regular Army.  After initial training she received military occupational specialty 75D (Personnel Records Specialist).

3.  From 6 December 1979 to 9 January 1980 she was absent without leave (AWOL).  Upon her return to military custody, she was charged with being AWOL and was pending a court-martial for being AWOL for a total of 34 days.

4.  She consulted with counsel and voluntarily requested discharge for the good of the service.  She acknowledged she had been afforded the opportunity to speak with counsel prior to making this request.  She acknowledged she understood the elements of the offense she was charged with and she was:

* making the request of her own free will
* advised she may be furnished an UOTHC discharge Certificate
* advised she could submit statements in her own behalf

5.  She did not submit any statement in her own behalf.   

6.  In addition, the applicant was advised she may expect to encounter substantial prejudice in civilian life if she was issued an UOTHC discharge and she:

* would be deprived of many or all Army benefits
* may be ineligible for many or all veteran's benefits
* may be deprived of her rights and benefits as a veteran under both Federal and State laws

7.  On 20 February 1980, her request was approved by the convening authority.  

8.  On 29 February 1980, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in-lieu of trial by court-martial with an UOTHC discharge.  Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows in Item 128c (Record of Service - Net Active Service This Period) - 
9 months and 29 days.  

9.  A review of the available records fails to show that the applicant never applied to the Army Discharge Review Board for an upgrade of her discharge within its 15-year statutory limit.

10.  The applicant provides supporting documentation from her mother, and provides letters of reference that attest to her post-service conduct.

11.  Army Regulation 635-200 (Enlisted Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 provides that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service and that the Soldier was admitting guilt of the charge(s) against him, or of a lesser included offense that was also authorized the imposition of a bad conduct or dishonorable discharge.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged; the type of discharge normally given under the provisions of this chapter, the loss of both Federal and state veteran's benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A discharge under other than honorable conditions would normally be furnished to a Soldier who was discharged for the good of the service.

   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.

	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.

12.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  However, her records show she had 34 days of lost time due to being AWOL and she served only 9 months and 29 days of active service.  

2.  Her period of AWOL is an offense punishable under the Uniform Code of Military Justice with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trail by court-martial.  The applicant voluntarily requested discharge from the Army in lieu of trial by court-martial that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  

3.  Although she enlisted in the U.S. Army at age 19, her youth is not a sufficient justification for upgrading her discharge or the fact that she wants to obtain a concealed weapons permit.

4.  The applicant provides a letter from her mother supporting her statement and letters of reference for her post-service conduct; however, although an unfortunate situation, there is no evidence to show she sought assistance from her chain of command or other legal avenues for assistance for her family.
 
5.  The applicant’s discharge accurately reflects her overall record of service.  

6.  In view of the foregoing, her request should be denied.

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)                                         AR20140015385



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ABCMR Record of Proceedings (cont)                                         AR20140018293


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