RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        8 September 2005
      DOCKET NUMBER:  AR20040010215


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

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. G. E. Vandenberg              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John T. Meixell               |     |Chairperson          |
|     |Mr. William D. Powers             |     |Member               |
|     |Mr. Larry J. Olson                |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that her discharge be upgraded.

2.  The applicant states that she was mistreated by her superiors and that,
when she was raped, she received no counseling to deal with the problems
resulting from this incident.

3.  The applicant provides a copy of a 27 August 2004 personal statement
outlining her rendition of an alleged rape incident.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 28 July 1980.  The application submitted in the case is dated
30 October 2004.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant's records show she entered active duty on 4 December
1979, completed training, and was awarded the military occupational
specialty (MOS) 16H (Operations and Intelligence Assistant).

4.  Court-martial charges were preferred for failing to go to her appointed
place of duty, two incidents of disobeying a lawful order from a
noncommissioned officer (NCO) , two incidents of disrespect toward an NCO,
unlawfully sticking (assault) another Soldier, communicating a threat to an
NCO, and communicating a threat to another Soldier.

5.  On 3 July 1980, after consulting with counsel and being advised of her
rights and options, the applicant submitted a formal request for discharge
for the good of the service in lieu of trial by court-martial under the
provisions of Army Regulation 635-200, chapter 10.  She acknowledged she
had been advised of and understood her rights under the Uniform Code of
Military Justice, that she could receive an under other than honorable
conditions (UOTHC) discharge which would deprive her of many or all of her
benefits as a veteran, that she could expect to experience substantial
prejudice in civilian life if she received an UOTHC discharge, and that
there is no automatic upgrading or review of a less than honorable
discharge.

6.  The applicant's entire chain of command recommended she be separated
with an UOTHC.

7.  On 17 July 1980 the applicant was afforded a mental status evaluation.
The examining physician did not find her to be suffering from any mental or
emotional problems.

8.  The separation authority approved the applicant's request and directed
that she be discharged under the provisions of Army Regulation 635-200,
chapter 10 with an UOTHC.

9.  On 28 July 1980 the applicant was discharged under the provisions of
Army Regulation 635-200, chapter 10 for the good of the service in lieu of
trial by court-martial.  She had 7 months and 21 days of creditable service
with no time lost.

10.  Neither the applicant's personnel nor her service medical records
contain any indication that she was raped or received any counseling or
treatment for any condition that would be related to her being raped.

11.  On 10 February 1982 the Army Discharge Review Board denied the
applicant's request for upgrade of her discharge.  The applicant's only
contention at this time was that her discharge was unfair; she did not
offer the alleged rape as a mitigating factor.

12.  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.  The U.S. Court of Appeals, observing
that applicants to the Army Discharge Review Board (ADRB) are by statute
allowed 15 years to apply there, and that the Board's exhaustion
requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens
that filing period, has determined that the 3 year limit on filing to the
Army Board for Correction of Military Records (ABCMR) should commence on
the date of final action by the ADRB.  In complying with the decision, the
ABCMR has adopted the broader policy of calculating the 3-year time limit
from the date of exhaustion in any case where a lower level administrative
remedy is utilized.


13.  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 trial by court-martial.  A
discharge under other than honorable conditions is normally considered
appropriate.

14.  The Manual for Courts-Martial, Table of Maximum Punishments, sets
forth the maximum punishments for offenses chargeable under the UCMJ.  A
punitive discharge is authorized for offenses under Article 128 (assault).


DISCUSSION AND CONCLUSIONS:

1.  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.  There is no indication that the
request was made under coercion or duress.

2.  The applicant's records are devoid of any indication that she was
raped, or that, if she was raped, she notified her command of the fact.
She has not submitted any documentation that would corroborate her
contention.

3.  Further, at the time of her application to the ADRB she did not address
the rape issue as a mitigating factor in her request for an upgrade.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 10 February 1982; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 9 February 1985.  The applicant did not file within
the 3-year statute of limitations and has not provided a compelling
explanation or evidence to show that it would be in the interest of justice
to excuse failure to timely file in the case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_JTM____  _WDP __  __LJO __  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of the case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file the application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  _      John T. Meixell_______
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040010215                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050908                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |Deny                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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