MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        

                  BOARD DATE: November 25, 2003
                  DOCKET NUMBER: AR2003090287

         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. Klaus P. Schumann		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor		Chairperson
Ms. Lana E. McGlynn		Member
Ms. Yolanda Maldonado		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: Reconsideration of her previous requests to upgrade her undesirable discharge to an honorable discharge.

APPLICANT STATES: In effect, that it was the responsibility of jail officials to notify the Army of her incarceration for the period 25 December 1975 to 8 January 1976 and that she should not have been considered absent without leave during this period. Additionally, she contends that her commander threatened her with "20 years at Fort Leavenworth" if she declined separation for the good of the service and that she was sexually harassed on her daily job.

She further states, that while on active duty she was discriminated against for being a black women and sexually harassed to the point of a nervous breakdown. She considers her flagging action a "grave insult and a moral wrong" and desires that her discharge be "corrected" in the "name of justice."

The applicant also states that her records were missing information regarding her training as an Operating Room Specialist.

In support of her application the applicant submitted two pages of her DA Form 2-1 (Personnel Qualification Record - Part II); a two-page letter, dated 19 April 2003, which states in effect, that while she was incarcerated, jail officials failed to notify the Army of her location which resulted in her being charged for being absent without leave; and a four page letter, dated 13 September 2003, which states in effect, that she was sexually harassed daily and she was AWOL because she listened to authorities who told her she could not leave her state because of pending criminal charges.

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

Incorporated herein by reference are military records, which were summarized in the two previous considerations of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC88-07715, on 29 March 1989 and Docket Number AR200272361, on 19 September 2002.

The applicant contends that it was the responsibility of jail officials to notify the Army that she was incarcerated, that she was threatened, by her Commander, if she declined separation for the good of the service, that she was sexually harassed on a daily basis, that she was discriminated against, and that information regarding her training as an Operation Room Specialist is missing from her records was not previously considered by the ABCMR and is therefore considered new evidence which will be rendered by the Board.

The applicant's records show that she entered active duty on 29 June 1974 as a Medical Specialist. She completed Basic and Advanced Individual Training on 1 November 1974 and was assigned to the Military District of Washington. On 25 January 1977, she was separated with an undesirable discharge.
The applicant's DD Form 214 (Report of Separation From Active Duty) shows in item 26 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) the award of the National Defense Service Medal.

The applicant's DD Form 214 shows in item 9c (Authority and Reason) that the applicant was separated under Chapter 10 of Army Regulation 635-200, Discharge for the Good of the Service.

The applicant's DD Form 214 shows in item 9e (Character of Service) that she received a characterization of service of under other than honorable conditions.

The applicant's DD Form 214 shows in item 21 (Time Lost) that she had 368 days lost while in service.

The applicant's DA Form 2-1 (Personnel Qualification Record - Part II) shows in item 17 that she attended and graduated from Military Occupational Specialty 91D20, Operating Room Specialist, training in 1974. She was subsequently assigned to a position utilizing this skill.

The applicant's DA Form 2-1 shows in item 27 that she was arrested for arson and assault on 25 December 1975.

The applicant's DA Form 2-1 shows in item 21 that she was in civil confinement for the period 25 December 1975 through 7 January 1976 and that she was absent without leave for the period 8 January 1976 through 26 December 1976.

The applicant's records contain a WRAMC Form 1505 (Emergency Room Record), dated 18 December 1975, which shows that she was very upset due to family problems she feels caused her work performance to suffer. Further she feels she is being treated with a condescending attitude at work because of her problems and racial/social background. The attending physician provided reassurance, prescribed medication, and referred her for a psychiatric evaluation.

A DA Form 4187 (Personnel Action), dated 6 January 1976, shows that the applicant's duty status was changed from present for duty to confined by civil authorities effective 25 December 1975

A DA Form 4187, dated 30 July 1976, shows that the applicant's duty status was changed from confined by civil authorities to absent without leave effective 8 January 1976.

A DA Form 4187, dated 30 July 1976, shows that the applicant's duty status was changed from absent without leave to dropped from the rolls effective 8 February 1976.

A DA Form 4187, dated 29 December 1976, shows that the applicant's duty status was changed from dropped from the rolls to present for duty effective 28 December 1976.

Evidence of record shows that on 27 December 1976, the applicant was apprehended by civil authorities and was returned to military control on 28 December 1976.

On 30 December 1976, the applicant underwent a separation medical examination and was found fit for separation.

During a mental status evaluation on 30 December 1976, the applicant's behavior was normal, and she was fully alert and fully oriented. She was in a level mood, her thinking process was clear, her thought content was normal and her memory was good. The applicant was found to be mentally responsible, able to distinguish right from wrong and had the mental capacity to understand and participate in board proceedings.

On 3 January 1977, the applicant was briefed by legal counsel on her option to submit a request for separation for the good of the service in lieu of court martial and the resulting loss of Army and veterans benefits associated with this type of discharge which includes an undesirable characterization of service.

The applicant's records show that on 3 January 1977, she acknowledged, in writing, that she understood that a discharge for the good of the service will make her "ineligible for many or all benefits administered by the Veteran's Administration" and that she "may be deprived" of her "rights and benefits as a veteran under both Federal and State law."

On 3 January 1977, the applicant submitted a voluntary request for separation from the Army for the good of the service.

On 11 January 1977, the separation authority approved the applicant's voluntary request for discharge and directed that the applicant receive an undesirable discharge.

On 25 January 1977 the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of court-martial.

On 19 March 1983, the applicant applied to the Army Discharge Review Board (ADRB) for upgrade of her undesirable discharge to an honorable discharge.

On 25 May 1984, the ADRB determined that she was properly and equitably discharged and denied her request to upgrade her undesirable discharge to an honorable discharge.

On 26 August 1986, the applicant submitted a second application to the ADRB requesting an upgrade of her undesirable discharge to an honorable discharge.

On 19 August 1987, the applicant and her counsel personally appeared before ADRB and were afforded the opportunity to present evidence which would support her request to upgrade the applicant's undesirable discharge to an honorable discharge.

On 23 October 1987, the ADRB again determined that the applicant was properly and equitably discharged and denied the applicant's request for an upgrade of her undesirable discharge to an honorable discharge.

On 2 February 1988, the applicant submitted an application to the Army Board for Correction of Military Records (ABCMR) requesting an upgrade of her undesirable discharge to a general discharge under honorable conditions. In her request, the applicant and her counsel contended that she received an undesirable discharge because of a civilian charge of arson. Additionally, the applicant contended she has served the time for her civilian conviction, is in therapy, is on supplemental social security and therefore her discharge should be upgraded.

On 22 May 1989, the ABCMR denied the applicant's request, citing the three-year time limit requirement for submitting requests for correction of one's military record as prescribed by Title 10, United States Code, Section 1552(b), as the reason for the denial. However, in the ABCMR letter to the applicant, the Board stated that the applicant's request was denied only after the Board determined that no error or injustice existed. Further, that had the Board found the case to be meritorious, it would have excused the failure to timely file.

On 3 April 2002, the applicant submitted a second request to the ABCMR for upgrade of her undesirable discharge to an honorable discharge.

On 19 February 2002, the ABCMR denied the applicant's second request citing the one-year time limitation for reconsideration of a case already considered by the Board and a lack of substantial new evidence which would warrant a reconsideration of the applicant's 29 March 1989 application, which was also denied.

Title 10, United States Code, Section 1552 provides that the Secretary of a military department may correct any military record of the Secretary’s department when the Secretary considers it necessary to correct an error or remove an injustice. The law further states that corrections shall be made by the Secretary acting through boards of civilians of the executive part of that military department. This provision of law is the basis for the operations of the ABCMR.

Army Regulation 15-185, sets forth the procedures for processing requests to correct military records. Paragraph 2-15b provides specific guidance to be applied in cases involving requests for reconsideration that are received more than one year after the Board's original consideration or after the Board has already reconsidered the case. In such cases, the ABCMR staff will review the request to determine if substantial relevant evidence is submitted showing fraud, mistake of law, mathematical miscalculation, manifest error, or the existence of substantial relevant new evidence discovered contemporaneously or within a short time after the ABCMR's original consideration. If such evidence is found, it will be submitted to the ABCMR for its determination of whether a material error or injustice exists and the proper remedy. If such evidence is not found, the application will be returned to the applicant without action.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that
a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge, may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of court-martial. A discharge under other than honorable conditions is normally considered appropriate.

Army Regulation 635-200, paragraph 3-7, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. Whenever there is doubt, it is to be resolved in favor of the individual.

Army Regulation 635-200, paragraph 3-7, 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. A characterization of under honorable conditions may be issued only when the reason for the soldier’s separation specifically allows such characterization.

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 considered the applicant's contention that jail officials failed to properly notify the Army of her incarceration during the period 25 December 1975 to 8 January 1976, which caused the Army to improperly report her duty status as absent without leave. However, the applicant's military records properly show the applicant's status as being confined by civil authorities during this period. Therefore, the Board determined that no error or injustice occurred and correction of the applicant's record is not necessary.

2. The Board noted that evidence of record shows that military authorities attempted to locate the applicant after her release on bond on 7 January 1976. However, all attempts failed and the applicant's duty status was properly changed from confined by civil authorities to absent without leave on 8 January 1976.

3. The Board considered the applicant's contention that her commanding officer threatened her with "20 years at Fort Leavenworth" if she did not except a separation for the good of the service. However, there is no indication in the applicant's records nor did she submit substantiating evidence to support the allegation that her voluntary request for discharge was made under coercion or duress. Therefore, the Board concluded that the applicant's claim is without merit and determined that the applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.

4. The Board considered the applicant's contention that she was discriminated against and sexually harassed while in the service. However, the applicant's record contained no evidence nor did she submit substantiating evidence for the Board to review, which would support this allegation. Therefore, the Board concluded that the applicant's contention is without merit.

5. The discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with the applicant's overall record of military service, which includes civil confinement and 368 days of AWOL in a period of less than three years.

6. The Board noted the applicant's contention that her file was missing entries which identified her as an Operating Room Specialist. However, her records properly reflect her training and the award of the appropriate MOS for this training. Therefore, no correction of the applicant's is required.

7. The Board noted that the applicant acknowledged in writing and was briefed prior to her discharge, that she would lose many or all Army and veterans benefits if her request for discharge for the good of the service were approved. Additionally, evidence of record shows that she received a list of federal veteran's benefits that would be affected by the issuance of an undesirable discharge certificate.

8. The Board noted the emergency room record for stress and tension contained in the applicant's medical records. However, the Board concluded that this condition was not the proximate cause of her misconduct because a mental evaluation completed prior to her discharge was normal and found her to be mentally competent.

9. 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.

10. 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

_LEM___ __YM___ ___RO____ DENY APPLICATION

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

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INDEX

CASE ID	AR2003090287
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20031125
TYPE OF DISCHARGE	(UD)
DATE OF DISCHARGE	19770125
DISCHARGE AUTHORITY	AR 635-200, Chapter 10 . . . . .
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.AdmDisch	144.0000.0000
2.
3.
4.
5.
6.