MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:


         BOARD DATE: 19 MARCH 2002
         DOCKET NUMBER: AR2001063797

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Ms. Shirley L. Powell		Chairperson
Mr. Stanley Kelley		Member
Mr. Elzey J. Arledge, Jr.		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

APPLICANT REQUESTS: Reconsideration of her request to correct her records to show that she was honorably discharged because of her ETS (Expiration of Term of Service), back pay, and compensatory, general, and other damages.

APPLICANT STATES: The applicant provides a nine page document with exhibits which purports to delineate the errors contained in the 1999 Board decision to correct her record to upgrade her general discharge to honorable, but without granting her request for back pay and compensatory and general monetary damages.

She states that the findings from the 1999 Board proceedings failed to address, “With knowledge that my court-martial defense testimony would implicate them for cause, misconduct and gross abuse of authority, military leadership conspired to prevent my trial and testimony and unlawfully separate me from service instead under Ch 10. And because I was not eligibility for Ch 10, leadership used unlawful and unconscionable means to ‘qualify’ me. By entrapment with a DOLC (disobedience of a lawful command) charge and coercion among others to submit the Ch 10 request, leadership thereby effected my unlawful separation from service under Ch 10.”

She states that the findings entirely disregarded her evidence, reported incorrect information, and omitted other important facts and information.

She states:

•         That the proceedings erred in stating that the ADRB denied full relief based on the Article 15 and the AWOL. She did not receive an Article 15 for AWOL and never stated that she did so.
•         That the finding did not address the issue which she presented to the Board, and took her statements out of context, falsely attributing them as her contention. The AWOL charge was wrongfully preferred, and that the leadership conspired to unlawfully separate her by Ch 10 in lieu of a court-martial, as evidence by proceedings being initiated in advance of any eligibility on her part. She refers to 20 October and 23 October 1978 medical documents at Exhibit 2 and 3. Her AWOL was not a punitive offense when Ch 10 proceedings were initiated. The wording of the Ch 10 request was misapplied in that each charge against her did not authorize the imposition of a punitive discharge. Leadership wrongfully and unlawfully initiated a Ch 10 to take away her right to trial, unlawfully separating her prior to her ETS.
•         That by the omission of documented adverse actions the finding included incorrect information, prejudicing her case, and disregarding her submission of evidence. She lists 16 separate accounts of actions against her by personnel in her chain of command, to include her records of nonjudicial punishment, the initiation of separation action on two occasions under provisions of the Expeditious Discharge Program (EDP), inclusion of additional court-martial charges, recommendation for a psychiatric examination, and so on. She refers to the exhibits provided with her request.
•         She lists other actions of alleged misconduct by members of her chain of command, to include her commander’s denial of a detachment to another unit as a drug and alcohol counselor, the first sergeant’s destruction of her OCS application packet, the revocation of orders transferring her to another unit, the discussion by members of her chain of command to separate her, her restriction upon her return from AWOL, the requirement under threat of retribution to provide false trial testimony, etc.
•         That the finding failed to disclose that the Ch 10 proceedings were initiated when the sole charge against her was the non-punitive AWOL charge, and the finding omitted the fact that the additional charges were not preferred until 4 November, after the Ch 10 proceedings had been initiated.
•         That the finding failed to address her contention that the discharge request was not voluntary but obtained unlawfully, and that it was the plan and intent to separate her in lieu of trial by court-martial. The members of her chain of command and her attorney deliberately misled her, causing her to not comprehend the situation in which they placed her. The conditions which she was under deprived her from acting intelligently and voluntarily. She did not receive benefit of appropriate counsel. All actions, except for the preferment of charges, were executed on the same afternoon on 6 November 1978, the haste obvious. Two of the commanders who recommended approval of the discharge request stood to be implicated by her trial testimony.
•         That the Ch 10 proceedings were not in compliance with regulations and law. It is obvious that she was set up and that she never stood a chance of fulfilling her military commitment, because of misconduct by members of her chain of command. There were never any grounds for her separation prior to completion of her four-year obligation, for any reason.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of her case on 19 May 1999 (AR1998014079), and a copy of a 30 May 2000 letter informing her that there was no basis for resubmitting her request to the Board (AR2000040730). Her 12 April 2000 request is attached to that letter.

There is no new evidence in this case, nor any new information that was not available when the Board considered her case on 19 May 1999 and when it returned her request on 30 May 2000. Her statements in this, her latest request, substantially mirror those of her 12 April 2000 letter to this Board.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. The Board concedes that the 19 May 1999 proceedings erred by indicating that the applicant stated that the Army Discharge Review Board denied her full relief based upon the Article 15 she received for being AWOL. The Board acknowledges that she did not receive an Article 15 for being AWOL, and did not so state. Nevertheless, this error had no effect on the favorable decision of the earlier board to upgrade her discharge to honorable, nor to deny her request for back pay, compensatory, and general monetary damages.

2. The Board adequately addressed the abuse of authority on the part of her command in its 19 May 1999 proceedings, seeing fit to upgrade her discharge to honorable. Nonetheless, the applicant did go AWOL, she did disobey a lawful command, and despite her contentions, her discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, was accomplished in compliance with applicable regulations – as reflected in the 19 May 1999 proceedings. Both the AWOL and her disobedience of a lawful command occurred before she requested discharge.

3. The Board noted that the applicant voluntarily requested discharge, and stated that the request was made of her own free will and that she had not been subjected to any coercion by any person. She further acknowledged that she was guilty of the charge(s) against her, and that she stated that under no circumstances did she desire further rehabilitation, nor desire to perform further military service. Members of her chain of command did not take away her right to a trial by court-martial, she did, by requesting a discharge for the good of the service in lieu of trial by court-martial, which was approved by the separation authority.

4. There is no evidence, nor has the applicant submitted any, to show that the discharge proceedings were unlawful, that she was misled, or that she did not receive benefit of counsel. Notwithstanding the applicant’s contention, there were sufficient reasons to discharge her prior to completion of her service obligation. Whereas the Board has recognized that the initial characterization of her discharge was unjust and has corrected it, the Board also recognizes that her discharge was proper. Consequently, her request to show that she was discharged on her ETS, with back pay, compensatory, general, and other damages, is denied.

5. The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision. This Board has provided the applicant as much relief as possible in her case based on the evidence and information available. It has considered her case again only because of her insistence that the Board had made substantial mistakes in reviewing her case. There are no substantial mistakes. Her contentions notwithstanding, she has been afforded a fair, just, and impartial review.

6. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

___SLP __SK____ __EJA __ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001063797
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020319
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.00
2.	384
3.
4.
5.
6.