| Mr. Carl W. S. Chun | Director | |
| Mr. W. W. Osborn, Jr. | Analyst |
| Ms. Margaret K. Patterson | Chairperson | |
| Mr. Walter T. Morrison | Member | |
| Mr. Thomas E. O'Shaughnessy | Member |
APPLICANT REQUESTS: Reconsideration of her earlier requests to upgrade her general discharge, to change the reason to Secretarial Authority and to change her reentry code to RE-1.
APPLICANT STATES: In effect, she repeats her contention that she was unaware of the charges against her, that she was not allowed to consult with counsel or read the request for discharge for the good of the service (GOS) in lieu of trial by court-martial. She was ordered and/or coerced to sign that document. She contends that the discharge was unfair because she had to clear post without orders and was unable do so in some vital areas.
She again contends that she was innocent and she submits documents to support that contention which she believes were not available to the Army Discharge Review Board or the original Army Board For Correction of Military Records (ABCMR) panel. These include medical documents, which she believes demonstrate from her statements to her doctor that she considered herself to be the victim and devoid of any help or support. She contends the fact that she attempted to withdraw the GOS request the next day shows that she was coerced and did not have counsel.
She also submits statements dated 2002 from two individuals who report that they were present in the orderly room when the incident occurred and that the applicant was simply defending herself against assault.
NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records that were summarized in a memorandum prepared to reflect the Board's previous consideration of the case (AR2002078731) on 10 October 2002.
The applicant’s submissions are included with the documents available to the previous ABCMR panel. However, since they were not specifically addressed they are re-submitted to this Board as new evidence and argument that warrants Board consideration.
T____ B____ C____ a former Army specialist wrote in a 9 August 2002 statement that she, Specialist C____ and Lieutenant G____ were in the orderly room on the day in question. There was a commotion, she looked up and saw Sergeant G____ push the applicant and the applicant defend herself. She reported that she made a similar statement to the chain of command but it was apparently ignored or not used.
Sergeant C____ A____ C____ was a sergeant when she wrote her 17 July 2002 statement. She reported that the applicant was outside the First Sergeant's door. "Sergeant G____ swung her around to face him. She then stated that to him that she wanted to speak to the 1SG and didn't want to talk to him anymore. This entire time SPC [applicant] was standing in the position of Parade Rest. She then said she was tired of him harassing her and he then brought his arm back, with his hand in a fist, like he was going to strike her. I covered my eyes and turned my head for a couple of seconds, and when I looked again, Sgt. G____ had shoved SPC [applicant] against the door and both fell to the ground, striking each other." She reported that, at the time, she made the same statement to the company commander and the first sergeant.
The charge sheet indicates that on 15 February 1996 the applicant was charged with assaulting, willfully disobeying and being disrespectful in language and deportment to the same noncommissioned officer (NCO).
The applicant's 26 April 1996 request for discharge in lieu of trial by court-martial is counter –signed by a military lawyer who asserted that he had advised her as to the pertinent aspects and consequences and that she had personally made the choices indicated.
Army Regulation 15-185 sets forth the policy and procedures for the ABCMR. It provides that, if a request for a reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration. The staff of the Board is authorized to determine whether or not such evidence has been submitted.
The regulation provides further guidance for reconsideration requests that are received more than 1 year after the Board’s original consideration or after the Board has already reconsidered the case. In such cases, the staff of the Board will review the request to determine if substantial relevant evidence has been submitted that shows fraud, mistake in law, mathematical miscalculation, manifest error, or if there exists substantial relevant new evidence discovered contemporaneously with or within a short time after the Board’s original decision. If the staff finds such evidence, the case will be resubmitted to the Board. If no such evidence is found, the application will be returned without action.
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 the absence of all of the information that was available to the chain of command when the decision to prefer charges was made, the two statements are inadequate to show that there was any injustice in that decision.
2. Furthermore, her medical records are simply a record of what she related and do nothing to demonstrate the accuracy of the applicant's assertions.
3. In light of the fact that the military lawyer, who provided advice and counsel at the time of her discharge request, counter-signed that document; the applicant's assertions that she had no counsel and was coerced into signing are unconvincing.
4. 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.
5. 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
___MKP_ __WTM _ ___TEO__ DENY APPLICATION
| CASE ID | AR2003084141 |
| SUFFIX | |
| RECON | YYYYMMDD |
| DATE BOARDED | 20030729 |
| TYPE OF DISCHARGE | UOTHC |
| DATE OF DISCHARGE | 19960618 |
| DISCHARGE AUTHORITY | AR635-200, chapter 10 . . . . . |
| DISCHARGE REASON | |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | |
| ISSUES 1. | A90.07 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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