IN THE CASE OF:	  

		BOARD DATE:	    7 July 2015

		DOCKET NUMBER:  AR20140019708 


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 upgrade of her under other than honorable conditions discharge. 
 
2.  The applicant states:

   a.  She believes her discharge was inequitable because it was based on one isolated incident in comparison to her excellent service with no other adverse action.  

   b.  The incident was set up by the accuser who was under duress during the period in question.  However, she received an under other than honorable conditions discharge without deeper investigation as to the state of mind of the accuser and those she was in a relationship with who did not care for the applicant.
   
   c.  Her service prior to the incident was impeccable.  She obtained high grades while attending training as a pharmacy technician.  She was misinformed that an upgrade would be automatic.  She is now a licensed pastor and serves homeless veterans and those diagnosed with post-traumatic stress disorder.  She believes she deserves an upgrade of her discharge and should be able to receive benefits for her 180 days of service.  She further states, in effect, had the incident not happened, she would have stayed for life. 

3.  The applicant provides no additional 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 enlisted in the Regular Army on 17 January 1985.  

3.  On 27 June 1985, court-martial charges were preferred against her for violating two specifications of Article 121 of the Uniform Code of Military Justice (UCMJ), specifically, for stealing U.S. currency from another Soldier; for violating two specifications of Article 123 of the UCMJ, specifically, for falsifying the signature of another Soldier on bank checks; and for violating Article 112a of the UCMJ by wrongfully possessing some amount of marijuana.

4.  On 15 July 1985, she consulted with legal counsel and she was advised of the basis for the contemplated trial by court-martial for an offense punishable under the UCMJ, the possible effects of discharge under other than honorable conditions if her request for discharge in lieu of trial by court-martial was approved, and of the procedures and rights available to her.  Following consultation with legal counsel, she requested discharge for the good of the service in lieu of court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.

5.  In her request for discharge, she indicated she was making this request of her own free will and she had not been subjected to any coercion whatsoever by any person.  She also indicated she understood that 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 dishonorable discharge.  She further acknowledged she understood if her discharge request was approved, she could be deprived of many or all Army benefits, she could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and she could be deprived of her rights and benefits as a veteran under both Federal and State laws.  She also stated that under no circumstances did she desire further rehabilitation and she had no desire to perform further military service.  She chose not to submit a statement on her behalf.

6.  Her immediate and intermediate commanders recommended approval of her discharge action with the issuance of an under other than honorable conditions discharge.

7.  On 30 July 1985, the separation authority approved her request for discharge under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of an under other than honorable conditions discharge.

8.  She was discharged on 5 August 1985.  Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial with a characterization of service of under other than honorable conditions.  Her DD Form 214 further shows she completed        6 months and 19 days of creditable active service with no time lost.

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

10.  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 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 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.

11.  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 ABCMR will decide cases on the evidence of record.  It is not an investigative body.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.  Additionally, applicants may be represented by counsel at their own expense. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that her undesirable discharge should be upgraded was carefully considered; however, it appears to lack merit.  

2.  Her records show she was charged with the commission of offenses punishable under the UCMJ 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.  She 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 her rights were fully protected throughout the separation process.  Further, her discharge accurately reflects her overall record of service.  There is no documentary evidence of mitigating factors that would have warranted a different outcome in her case.

3.  With regard to an automatic upgrade of her discharge, the U.S. Army has never had a policy where a discharge was automatically upgraded.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  The ABCMR will recommend changes if it is determined that the characterization of service or the reason for discharge were both improper and inequitable.

4.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for health care and other benefits should be addressed to the VA.



5.  Based on her record of indiscipline, her service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered her service unsatisfactory; therefore, there appears to be insufficient evidence to support upgrade to either 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)                                         AR20140019708





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ABCMR Record of Proceedings (cont)                                         AR20140019708



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