IN THE CASE OF: BOARD DATE: 29 March 2016 DOCKET NUMBER: AR20150009409 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 realizes how important it is to have an honorable characterization of service. She wants to leave behind a good character for herself. She had served for 2 years and had reenlisted, and she knows that she made a mistake. She wants to be a proud veteran and wants her children to know her and remember her as a proud veteran. She was a proud Soldier and she is sorry for her mistakes. She is 61 years of age now and if she could go back in time and correct the past, she would do it. During her service in the Army, she had a son but she was unmarried. She could not be in the service with a child at the time and would have had to put her son up for adoption. As much as she loved the Army, she could not do that to her son. 3. The applicant does not provide any 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 August 1971 and she military occupational specialty 91B (Medical Specialist). She extended her enlistment on 10 August 1972 and 14 January 1974 for 10 months and 30 months respectively. 3. She initially served at Fort Monmouth, NJ, and then at Fort Carson, CO. On 27 November 1974, she departed Fort Carson enroute to the 315th Medical Group in Germany. 4. On 18 December 1974, she was reported by her unit, the 21st Replacement Detachment in an absent without leave (AWOL) status but she returned to military control on 2 January 1975 (at Fort Carson). 5. On 3 January 1975, she accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UMJ) for being AWOL from 18 December 1974 to 2 January 1975. She was punished with a suspended reduction to private first class/E-3. 6. Her records show she was AWOL again from on or about 20 January 1975 to 10 March 1975. Her record indicates she briefly returned to military control on 10 March 1975 but went AWOL again the same day and was immediately dropped from the rolls. She ultimately returned to military control on 11 August 1975. 7. On 26 March 1975 and 11 August 1975, her command preferred court-martial charges against her for: * being AWOL from 20 January to 10 March 1975 * being AWOL from 10 March 1975 to 11 August 1975 * escaping from the custody of another Soldier guarding and escorting her * preparing a copy of a false official order with intent to deceive * making and uttering checks with insufficient funds (seven specifications) 8. On 3 September 1975, the applicant consulted with legal counsel who advised her of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to her. Following consultation with legal counsel, she requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). In her request for discharge, she acknowledged she understood: * if the discharge request was approved she could be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate * she could be deprived of many or all Army benefits and she could be ineligible for many or all benefits administered by the Veterans Administration * she could be deprived of her rights and benefits as a veteran under both Federal and State laws, and she could expect to encounter substantial prejudice in civilian life because of an undesirable discharge * she elected to submit statements in her behalf (not available for review) 9. Her immediate and intermediate commanders recommended approval with the issuance of an Undesirable Discharge Certificate. The immediate commander stated that the applicant had had 154 days of lost time. During his interview with her, she indicated that she wanted to be discharged and her attitude and record supported a conclusion that she would never complete her enlistment or benefit from any rehabilitative efforts. 10. On 22 September 1975, consistent with the chain of command's recommendations and following a legal review, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial and directed that she be reduced to the lowest enlisted grade and issued an Undesirable Discharge Certificate. On 6 October 1975, the applicant was accordingly discharged. 11. The DD Form 214 (Report of Separation from Active Duty) she was issued shows she was discharged under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by a court-martial with an under other than honorable conditions discharge. She completed 3 years, 6 months, and 16 days of active service during this period and she had 218 days of lost time. She was awarded or authorized the National Defense Service Medal. 12. There is no indication the applicant petitioned the Army Discharge Review Board for a review of her discharge within that board's 15-year statute of limitations. 13. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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 (a type of undesirable discharge) is normally considered appropriate. a. 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 b. 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 records show she was charged with the commission of offenses punishable under the UCMJ with a punitive discharge. Discharges under the provisions of chapter 10 of Army Regulation 635-200 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. 2. The difficulties she describes regarding being unmarried with a son while serving in the Army are noted. There would have been other legitimate avenues to address such issues had she elected to use them. The available evidence does not demonstrate how her AWOL, escape from custody, and writing bad checks relate to the difficulties she describes in her application. Her statement alone is insufficient evidence of mitigating circumstances that might serve as a basis for modifying the discharge she received. 3. Based on her record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct rendered her service unsatisfactory. Her service did not rise to the level required for 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) AR20150009409 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150009409 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1