RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 September 2005
      DOCKET NUMBER:  AR20040011427


      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. Robert J. McGowan             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James C. Hise                 |     |Chairperson          |
|     |Mr. Thomas E. O'Shaughnessy, Jr.  |     |Member               |
|     |Mr. Patrick H. McGann, Jr.        |     |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 general under honorable conditions
discharge be upgraded to an honorable discharge and that her DD Form 214
(Certificate of Release or Discharge From Active Duty) be changed in Items
25-28 to reflect such upgrade.

2.  The applicant states that she was sexually assaulted by her commanding
officer in Germany.  This assault caused a decline in her standards and
directly led to her separation.  She adds that the Department of Veterans
Affairs (DVA), on 1 October 2004, acknowledged the occurrence of the sexual
assault and has attributed her post-traumatic stress disorder (PTSD) to
that assault.

3.  The applicant provides no supporting documents.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 5 January 1981.  The application submitted in this case
is dated 6 December 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 enlisted in the Regular Army for 4 years on 17 August
1979.  Following training at Fort Jackson, South Carolina and Aberdeen
Proving Grounds, Maryland, she was awarded military occupational specialty
(MOS) 54E (Chemical Operations Specialist) and transferred to Germany for
her first permanent duty assignment.

4.  The applicant arrived in Germany in January 1980 and was assigned to
the 92nd Chemical Company, 3rd Infantry Division.  Almost immediately upon
her assignment to her new unit, the applicant became a disciplinary
problem.  Her attitude, appearance, and deportment were unacceptable.  She
was counseled
on numerous occasions and twice accepted nonjudicial punishment (NJP) under
Article 15, Uniform Code of Military Justice.  On 21 August 1980, she was
referred for psychiatric evaluation.  The psychiatrist found her to be
manipulative, and to have displayed a behavior pattern suggestive of an
inadequate personality.  He recommended administrative discharge.

5.  On 10 November 1980, Social Work Services, US Army Medical Department
Activity, Wuerzburg, Germany provided a memorandum to the applicant's
commander stating "[applicant] is a highly manipulative individual, and she
is unlikely to perform her duties as a [S]oldier in a satisfactory manner."
 The memorandum concurred in the psychiatric evaluation and recommendation
that the applicant be eliminated from the service.

6.  All of the administrative separation paperwork is no longer available
in the record; however, on 11 December 1980, the applicant's commander
recommended her separation with a general discharge under the provisions of
paragraph 5-31, Army Regulation (AR) 635-200, the Expeditious Discharge
Program (EDP).  On the same date, the approving authority approved the
recommendation and directed the applicant's general discharge.

7.  The applicant was discharged on 5 January 1981 with a general discharge
under the provisions of paragraph 5-31, AR 635-200, "expeditious discharge
program (EDP), failure to maintain acceptable standards for retention."
She had 1 year, 4 months and 19 days of creditable active service.  Her
separation code was "JGH" and her reenlistment code was "3."

8.  AR 635-200 provides the policy and sets forth the procedure for
administrative separation of enlisted personnel.  Paragraph 5-31, then in
effect, provided for the Expeditious Discharge Program (EDP).  This program
provided for the discharge of individuals who had completed at least 6
months, but less than 36 months of active duty and who demonstrated by poor
attitude, lack of motivation, lack of self-discipline, inability to adapt
socially or emotionally, or failure to demonstrate promotion potential that
they could not or would not meet acceptable standards.  Such personnel were
issued a general or honorable discharge, as appropriate, except that a
recommendation for a general discharge had to be initiated by the immediate
commander and the individual had to consult with legal counsel.

9.  There is no evidence that the applicant applied to the Army Discharge
Review Board for upgrade of her discharge within its 15-year statute of
limitations.

10.  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 this 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 this 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was a substandard Soldier who demonstrated a poor
attitude, lack of motivation, lack of self-discipline, and an inability to
adapt socially or emotionally to the Army.  Because she could not or would
not meet acceptable standards of conduct, her commander recommended that
she be discharged under the EDP.

2.  Although all documents pertaining to the applicant's discharge are no
longer available, it is presumed her 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.

3.  The applicant has provided no proof, and the record does not
substantiate, that she was sexually assaulted by her commander.  On the
contrary, the record strongly suggests the applicant was a manipulative
individual who would do and say whatever was necessary to get her way.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 5 January 1981; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 4 January 1984.  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 this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__jch___  __teo___  __phm___  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 this 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 this 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.



                                        Thomas C. Hise
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040011427                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050920                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19810105                                |
|DISCHARGE AUTHORITY     |AR 635-200 , Chap 5                     |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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