IN THE CASE OF: BOARD DATE: 14 January 2016 DOCKET NUMBER: AR20150006461 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 an upgrade of her under other than honorable conditions discharge. 2. The applicant states she was young when she entered the U.S. Army. She conducted herself poorly and compromised her integrity. a. She states that her discharge was based on one isolated incident during her 37 months of service with no other adverse actions. She believes her discharge was unjust because there was no flexibility exercised regarding her rehabilitation. There were no alternative solutions offered (e.g., counseling, community service, or other corrective measures). Had she been offered such alternatives, she would have been provided favorable circumstances to mature into a remarkable Soldier in the U.S. Army. b. The applicant extends her apologies to the Board and the U.S. Army for her actions. She states there was no excuse for her actions that disgraced the U.S. Army uniform. Since her discharge she has matured into a trustworthy woman and an outstanding mother responsible for fulfilling moral and social obligations in her community. She has pursued a college education and is active in community outreach teaching children values. She is currently a supervisory physical security officer. She concludes by stating the characterization of her service nullifies her personal development and hinders future employment opportunities, which adversely impacts her children. 3. The applicant provides copies of the following documents – * a self-authored statement (summarized above) * a character reference statement * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 and entered active duty in the Regular Army (RA) on 18 September 1991 for a period of 3 years. At the time she was 20 years of age. Upon completion of training she was awarded military occupational specialty (MOS) 94B (Food Service Specialist). She attained the rank of specialist (SPC)/pay grade E-4. 3. The applicant reenlisted in the RA on 12 May 1994 for a period of 4 years with a U.S. Army Overseas Station of Choice (Europe) reenlistment option. 4. On 26 August 1994, court-martial charges were preferred against the applicant for violation of the Uniform Code of Military Justice (UCMJ) – * Article 134 (Mail: taking, opening, secreting, destroying, or stealing), for wrongfully opening and stealing certain mail matter (an envelope addressed to another Soldier containing a Visa credit card) on 15 June 1994 * Article 123 (Forgery), for, with intent to defraud, falsely making and uttering in its entirety (on a credit card receipt) the signature of another Soldier to a commercial business and a bank in the amount of $361.53 on 15 June 1994 5. On 26 September 1994, the applicant consulted with legal counsel. She was informed of the charges against her for violating the UCMJ and that she was pending trial by court-martial. She was advised of the rights available to her and of the option to request discharge for the good of the service in lieu of trial by court-martial. a. She voluntarily requested discharge for the good of the service in lieu of trial by court-martial. By submitting her request for discharge she acknowledged that she was guilty of the charges against her or of lesser included offenses therein contained, which also authorized the imposition of a bad conduct or dishonorable discharge. The applicant's request for discharge states she was not subjected to coercion with respect to her request for discharge. b. She was advised that she might be – * deprived of many or all Army benefits * ineligible for many or all benefits administered by the Veterans Administration * deprived of her rights and benefits as a veteran under both Federal and State laws c. She acknowledged she understood that, if her request for discharge was accepted, she might be discharged under other than honorable conditions. She also acknowledged that she may expect to encounter substantial prejudice in civilian life in the event an under honorable conditions discharge was issued to her. d. She was also advised that she could submit statements in her own behalf and she submitted a statement with her request. e. The applicant and her counsel placed their signatures on the document. f. The applicant's signed statement shows she asked the separation authority to consider a general, under honorable conditions discharge. She stated that she made a mistake and wanted to correct it before leaving the Army. She wrote, "Up until the month of June I think I have been a good Soldier and I enjoy[ed] my job, but something turn[ed] wrong for me and I saw a way out and without thinking I made the wrong choice, and know I have to take my punishment and I took the Chapter 10 because I have a daughter and I can't go through a court-martial and take the risk of jail time." She added, "I can't remain in the Army, so in order for me to make it in the civilian world and raise my child, so I'm asking for a General Discharge." g. The defense counsel also submitted a statement to the separation authority in support of the applicant's request for a general, under honorable conditions discharge. He noted that the applicant was a single mother with a 16-month old daughter and willing to make restitution for the loss that was borne by the credit card company. He added a general discharge would make it easier for the applicant to secure employment after her separation from the U.S. Army. 6. Her chain of command recommended approval of her request for discharge with the issuance of an under other than honorable discharge. The Staff Judge Advocate recommended the separation authority approve the request for discharge and direct an under other than honorable conditions discharge. 7. On 16 October 1994, the separation authority indicated that he reviewed the applicant's record and information in the file. Based on the review, he approved the applicant's request for discharge, reduced her to the lowest enlisted grade, and directed that her service be characterized as under other than honorable conditions. 8. The applicant's DD Form 214 shows she entered active duty this period on 18 September 1991 and she was discharged on 4 November 1994 under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, in lieu of trial by court-martial with an under other than honorable conditions characterization of service. She had completed 3 years, 1 month, and 17 days of net active service during this period. It also shows in – * item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) – * Army Good Conduct Medal * National Defense Service Medal * Army Service Ribbon * Sharpshooter Marksmanship Qualification Badge with Rifle Bar * item 18 (Remarks), in pertinent part, "Continuous Honorable Active Federal Service from 19910918–19940511" 9. A review of the applicant's military personnel records failed to reveal any evidence that she applied to the Army Discharge Review Board for review of her discharge within its 15-year statute of limitations. 10. In support of her application the applicant provides a character reference letter, dated 3 March 2015, written by M___ V___, Building Supervisor, that shows he has supervised the applicant for 2 years. He recommends her as an exceptional employee with impressive organizational skills. He states she is reliable and has a positive attitude, a willingness to learn new concepts, and an ability to find creative solutions. 11. Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. 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. 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. Chapter 3, 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. Chapter 3, 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 contention that the characterization of her service should be upgraded as a matter of equity because she was young and immature, her discharge was based on one isolated incident during 37 months of service with no other adverse actions, her discharge was unjust because she was not provided any form of rehabilitation, it adversely affects her employability, and her post-service achievements are nullified by the character of her discharge. 2. The applicant successfully completed training, was awarded MOS 94B, attained the rank of SPC (E-4), and was awarded the Army Good Conduct Medal (1st Award), which demonstrates her capacity for honorable service and argues against her contention that she was immature. In addition, item 18 of her DD Form 214 shows she served honorably on active duty during the period of her initial enlistment obligation from 18 September 1991 through 11 May 1994. 3. The applicant's request for discharge under the provisions of AR 635-200, chapter 10, to avoid trial by court-martial was both voluntary and administratively correct. All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process. 4. The evidence of record shows the applicant committed acts of misconduct on 15 June 1994. At the time she was 23 years of age. a. Charges were preferred against the applicant that included taking, opening, secreting, destroying, or stealing mail and also forgery. It is not clear what type of rehabilitative counseling/community service the applicant is referring to with respect to her untrustworthiness. In any event, she was pending trial by court-martial and, if convicted, the authorized punishment included the possibility of confinement and/or a punitive discharge. In fact, this was a means of rehabilitation in response to the egregious acts that adversely affected the personal affairs of another Soldier and, as such, argues against the applicant's contention that she was not afforded any form of rehabilitation. b. Nonetheless, the applicant chose to voluntarily submit her request for discharge. In doing so she acknowledged that she was guilty of the charges against her (or of lesser included offenses therein contained). She did not request any rehabilitative measures, she simply asked for a general discharge. c. Based on the evidence of record, the applicant's service (i.e., during the period 12 May 1994 through 4 November 1994) clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel. Her misconduct also renders her service unsatisfactory. d. Considering that an under other than honorable conditions discharge is normally considered appropriate, the redeeming aspects of her record of service was clearly considered and recorded on her DD Form 214. As such, she is not entitled to either an honorable discharge or general, under honorable conditions discharge for the period of service under review. e. The applicant's post-service conduct and achievements were considered. However, her post-service conduct is insufficient as a basis for upgrading the characterization of her discharge. 5. In view of the foregoing, there is an insufficient evidentiary basis for granting the 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) AR20150006461 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150006461 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1