IN THE CASE OF:	  

		BOARD DATE:	  16 June 2015

		DOCKET NUMBER:  AR20140018436 


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 her discharge under other than honorable conditions be upgraded to a general discharge under honorable conditions.

2.  The applicant states she was advised that she could request her discharge be upgraded to a general discharge under honorable conditions after 1 year.  She was told she just had to submit a request and if she had a clean record, her discharge would be upgraded.

3.  She states that during advanced individual training (AIT) she requested assistance from her drill sergeant to get married.  However, because they were a bi-racial couple, the drill sergeant told her he would do everything in his power to prevent them from getting married.  Her fiancé was to graduate 2 weeks before she was and on his last weekend he was ordered to pull CQ (charge of quarters) and during the day he was ordered to sand bag duty.  Her fiancé went on to his new duty station and she had orders to Germany.

4.  She asked a Judge Advocate General’s Corps (JAG) colonel how she could tell her story of the prejudiced drill sergeant who prevented her from getting married.  He told her if she wanted to be heard she would have to be court-martialed.  He told her she would have to mess up real bad.  If she simply went absent without leave (AWOL) she would receive nonjudicial punishment (NJP) and be sent to Germany.  If she became a deserter she would be court-martialed and be able to go before a board and tell her story.

5.  Upon her return from a deserter status she went before a judge and explained the reason for her going AWOL.  He gave her three choices, 1) she could get orders cut to be stationed at the same duty station as her fiancé so they could be married, 2) she could go back to the unit she was supposed to go to with no consequences, or 3) she could simply get out of the Army to go and get married. She chose to get out of the Army.

6.  She has worked for the U.S. Army and the Department of Defense holding a secret clearance at various times.  She has over 26 years of Federal service and currently works for the Department of Justice at the U.S. Attorney's Office.

7.  The applicant provides a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 21 October 1983.

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 24 November 1982, she enlisted in the Regular Army for 3 years.  She completed basic combat training and AIT and was awarded military occupational specialty 63B (Light-Wheel Vehicle Mechanic).

3.  She received orders to Headquarters and Headquarters Detachment, 
21st Adjutant General Replacement Battalion in Germany.  She was ordered to report to the Military Airlift Command at St. Louis Airport, MO no later than 
5 June 1983.  She failed to report and was placed in an AWOL status.

4.  On 25 July 1983, she surrendered to military authorities.  On 26 July 1983, she was assigned to Headquarters, U.S. Army Personnel Control Facility, U.S. Army Armor Center and Fort Knox, Fort Knox, KY effective 25 July 1983.

5.  On 27 July 1983, court-martial charges were preferred against the applicant for being AWOL from on or about 5 June 1983 to on or about 25 July 1983.
6.  On 28 July 1983, she voluntarily requested discharge for the good of the service.  She acknowledged she understood the offense she was charged with and she was:

* making the request of her own free will
* guilty of the offense with which she was charged
* not submitting statements in her own behalf
* afforded the opportunity to speak with counsel prior to making this request
* advised she may be furnished an Under Other Than Honorable Conditions Discharge Certificate

7.  In addition, the applicant was advised she could expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions and she:

* would be deprived of many or all Army benefits
* could be ineligible for many or all Veterans Administration (VA) benefits

8.  On 29 September 1983, the appropriate authority approved her request for discharge for the good of the service.  He directed the applicant be reduced to private/pay grade E-1 and that her service be characterized as under other than honorable conditions.

9.  On 21 October 1983, the applicant was discharged under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations Enlisted Personnel) for the good of the service in lieu of trial by court-martial.  She had completed 9 months, and 8 days of net active service that was characterized as under other than honorable conditions.  She had 50 days of lost time.

10.   Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.

	a.  Chapter 10 stated a member who was charged with 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 in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt.  Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally issued to an individual who was discharged for the good of the service.

	b.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant submits an application to either the Army Discharge Review Board or the ABCMR requesting change in discharge.  Changes may be warranted if the ABCMR determines that the characterization of service or the reason for discharge or both were improper or inequitable.  The Defense Discharge Review Standards specifically state that no factors should be established that require automatic change or denial of a change in discharge.

2.  She contends a prejudiced drill sergeant prevented her and her fiancé from getting married while both were in AIT.  She contends a JAG colonel told her the only way for her story to be heard was to be court-martialed.  After returning from a deserter status a judge gave her three choices and she chose to get out of the Army.  However, she has provided no substantive evidence to support her contentions.  Her request for discharge in lieu of court-martial does show she chose to leave the Army.

3.  She voluntarily requested discharge and admitted guilt to the offense for which she was charged.  She also acknowledged that she could receive a discharge under other than honorable conditions and that as a result she could be ineligible for many or all Army benefits to include benefits administered by the VA.

4.  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.

5.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no evidence of procedural or other errors that would have jeopardized her rights.

6.  She failed to complete the term of service she had contracted for and she had 50 days of time lost.  Therefore, her period of service is unsatisfactory.

7.  In view of the above, there is an insufficient basis to upgrade her properly issued discharge under other than honorable conditions to a general discharge under honorable conditions.
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)                                         AR20140018436



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ABCMR Record of Proceedings (cont)                                         AR20140018436



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