MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 9 September 2003
         DOCKET NUMBER: AR2002080951

         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
Ms. Rosa M. Chandler		Analyst

The following members, a quorum, were present:

Ms. Shirley L. Powell		Chairperson
Mr. Walter T. Morrison		Member
Mr. Thomas A. Pagan		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)

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APPLICANT REQUESTS: In effect that her General Discharge (GD) be upgraded to a fully honorable discharge.

APPLICANT STATES: In effect, that another soldier in her unit raped her and threatened her life and her chain of command supported the assailant, not her; that the assailant remained in the unit and she ran into him on a daily basis; the alleged rape became common knowledge and both her subordinates and her peers treated her badly. Her chain of command then discriminated against her and unfairly separated her for unsatisfactory performance because she is a woman. The Department of Veterans Affairs (DVA) has determined she suffers from service-connected post-traumatic stress disorder. She submits in support of her request a letter from the DVA; and a DVA Rating Decision, both dated
30 August 2002.

EVIDENCE OF RECORD: The applicant's military records show:

On 29 January 1982, she enlisted in the Delayed Entry Program (DEP). On 19 March 1982, she was discharged from the DEP and enlisted in the Regular Army for 3 years and training in military occupational specialty (MOS) 94B (Food Service Specialist). On 6 August 1982, the applicant was assigned to Schofield Barracks, Hawaii, with duties in her MOS.

On 5 September 1982, the applicant alleged in a sworn statement that a soldier in her unit raped her. The applicant admitted that she had spent the day with the accused soldier; that she allowed him to enter her barracks room to pick up a television set that she had borrowed from him the day before; that they engaged in consensual foreplay; that she willingly took off her clothing; that she willingly consented and engaged in intercourse with the accused soldier; and that all was fine until he became rough with her. She stated she told the accused soldier that he was hurting her and asked him to stop; he refused and threatened to kill her. She said that after about 30 minutes, she began crying and became hysterical and he got dressed and left her room.

In a sworn statement, the accused soldier stated that on 4 September 1982, he met the applicant and on the same day they went up to her barracks room together because he loaned her his television set. After they got to the room, they began talking and before long they were engaged in intercourse. After they finished, he said goodbye and left the room. On 5 September 1982, they ran into each other again and they went out driving around Oahu, Hawaii and they drank some beer. They arrived back at the barracks at dusk and he went up to her room to pick up his television. The applicant took off her clothes and they engaged in consensual sex. The accused soldier said he was not rough with her, but that she began complaining of pain as a result of the intercourse. After trying several different positions, she said she was going to scream if he didn't stop. He stated he didn't want any trouble, so he got dressed, picked up the television and left her room.

A Criminal Investigation Division (CID) Report of Investigation, dated 15 October 1982, states that no rape occurred and that the intercourse was consensual. However, the report did find that the applicant and the accused soldier engaged in consensual oral sodomy when the applicant performed fellatio on the accused soldier.

On the same date, the applicant's commander determined that even though the applicant was technically guilty of sodomy, it was not prosecutable and that the interests of the applicant and the Army would be best served by administering an oral admonition.

A General Counseling Form, dated 7 January 1983, indicates the applicant had been a marginal performer since she arrived in the unit and that she had been counseled on numerous occasions regarding her substandard duty performance. It indicates she consistently demonstrated poor hygiene and personal appearance; lacked military bearing and decorum; demonstrated unusual sexual deviation; and had numerous personal problems that adversely affected her overall performance. She was also counseled for outbursts and for literally throwing a temper tantrum in front of the senior members of the chain of command. The outbursts normally occurred when she was placed in a stressful situation. During the counseling session, the applicant admitted that she was unable to adjust to the military environment and that she should have never been allowed to enter the military. However, her primary concern was that she did not desire to return home to her parents who would present her with a more controlled environment. The applicant was informed that her inability to adapt to military life could lead to separation under the provisions of chapter 13, Army Regulation (AR) 635-200 with a GD, and that such a discharge could affect her benefits and employment opportunities. The applicant agreed that separation was necessary.

On the same date, the applicant's commander officially notified her that she was being recommended for discharge under the provisions of chapter 13,
AR 635-200 for unsatisfactory performance. She was informed that the bases for the contemplated separation action were her frequent misconduct, and lack of initiative and discipline. She was also informed of the rights available to her.

The applicant's available records do not contain any separation medical documents.

On 12 January 1983, the applicant acknowledged notification of the commander’s intent to separate her. She consulted with legal counsel concerning the bases for the contemplated separation action and the rights

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available to her. She authenticated a statement that indicates she understood the ramifications of receiving a GD. Her record does not contain a statement that was submitted in her own behalf. She was not entitled to a personal appearance before an administrative separation board.

On an unknown date, the applicant’s commander requested that the appropriate authority waive further rehabilitation requirements.

On 17 January 1983, the applicant’s commander recommended that the applicant be separated under the provisions of chapter 13, AR 635-200 for unsatisfactory performance with an honorable discharge.

On the same date, the appropriate authority waived further rehabilitation requirements, directed that the applicant be separated with a GD.

On 2 February 1983, the applicant was separated for unsatisfactory performance under the provisions of chapter 13, AR 635-200 with a GD. Her DD Form 214 shows that she had completed a total of 10 months and 14 days of creditable service. She had no recorded lost time.

On 16 August 2002, a DVA Rating Decision shows the DVA granted the applicant a 100% disability rating due to posttraumatic stress disorder.

There is no evidence in the available records to indicate the applicant ever applied to the Army Discharge Review Board for an upgrade of her discharge within that board's 15-year statute of limitations.

AR 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier. Army policy states that a GD is normally considered appropriate, but an HD may be granted in meritorious cases.

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. In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

2. The applicant's discharge proceedings were conducted in accordance with law and regulations applicable at the time. Both the characterization of service and the narrative reason for separation are commensurate with the applicant’s overall record of military service.

3. The available record contains no evidence that indicates the applicant had a medical condition that rendered her medically unfit and justified physical disability processing.

4. The fact that the DVA, in its discretion, has recognized a medical condition as being service-connected is a prerogative exercised within the policies of that agency. It in no way affects the applicant's discharge from active duty. Furthermore, the DVA can evaluate a veteran throughout her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

5. The Board noted the applicant's contentions concerning her chain of command but found no evidence of arbitrary or capricious actions by the chain of command. The applicant has provided no evidence to the contrary.

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___ __wtm___ __tap___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002080951
SUFFIX
RECON
DATE BOARDED	20030909
TYPE OF DISCHARGE	(GD)
DATE OF DISCHARGE	19830202
DISCHARGE AUTHORITY	AR635-200, Chap 13
DISCHARGE REASON	A49.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	144.4900
2.
3.
4.
5.
6.