RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           27 JULY 2004
      DOCKET NUMBER:  AR2004099897


      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             |
|     |Ms. Gale J. Thomas                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Melvin Meyer                  |     |Chairperson          |
|     |Mr. Thomas O'Shaughnessy          |     |Member               |
|     |Ms. Eloise Prendergast            |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      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 records be corrected by upgrading her
discharge to honorable.

2.  The applicant states that her discharge was based on unsatisfactory
performance, but she was an excellent Soldier.  She was young and naive,
and confused about her sexual preference, but that should not have been an
excuse to discharge her.  She feels she was discharged under false
pretence, and coerced into signing a Chapter 13 discharge.

3.  The applicant provides no evidence in support of her request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 31 May 1984.  The application submitted in this case is dated
21 October 2003.

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 limitation 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 on 29 May 1980.  At the time
of her enlistment she was 19 years old.  She served in Germany from
September 1980 to May 1984.

4.  On 5 February 1982, the applicant accepted nonjudicial punishment under
the provisions of Article 15, Uniform Code of Military Justice, for
sleeping on guard duty.  Her punishment was a forfeiture of pay, extra duty
and restriction.

5.  The applicant’s records contain a Military Police Report dated 22
February 1984, which indicates she had been apprehended for possession and
use of a controlled substance, making a false sworn statement and for
sodomy.  The applicant had initially stated, that she had taken an unknown
type of pill and was unable to remember what had occurred, that when she
woke up she discovered that her wallet and leather jacket had been stolen.
After being re-interviewed, the applicant stated that she had taken a pill
which contained a controlled substance, that she had lost her wallet and
thrown away her leather jacket, and admitted to having unnatural sex with a
German national female.
6.  On 9 April 1984, a mental status evaluation and medical examination
cleared the applicant for separation.

7.  On 20 April 1984, the applicant’s commander notified her that he was
initiating action to separate her under Army Regulation 635-200, Chapter
13, for her recent acts of misconduct to include possession and use of a
controlled substance, false swearing, and indecent acts with another
female.  He also cited her failure to meet the height and weight standards
of Army Regulation 600-9, and for a previous Article 15, for sleeping on
guard duty.  The applicant was advised of her rights.

8.  On 1 May 1984, the applicant acknowledged that she had been advised by
counsel of the basis for her commander’s intent to separate her.  She
waived representation by legal counsel, and elected not to submit a
statement in her own behalf.  She further acknowledged that she understood
that if she received a general under honorable conditions discharge she may
encounter substantial prejudice in civilian life.

9.  On 1 May 1984, the applicant’s commander recommended the applicant be
discharged under the provisions of Army Regulation 635-200, Chapter 13, for
unsatisfactory performance because her retention would have an adverse
impact on military discipline, good order, and morale, and because her
retention would be a disruptive influence in present and future duty
assignments.  He also stated that the applicant’s conduct since being
assigned to the unit had been below average.

10.  On 5 May 1984, the appropriate separation authority approved the
recommendation for discharge under Army Regulation 635-200, Chapter 13, and
directed the issuance of a general discharge.

11.  On 31 May 1984, the applicant was discharged under the provisions of
the above-cited regulation with a general discharge.  Her DD Form 214
(Certificate of Release or Discharge from Active Duty) indicates she had 4
years, 9 months and 2 days of active service.

12.  Army Regulation 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.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize her rights.

2.  The applicant's contention that she was young and naive at the time, is
not sufficiently mitigating to warrant relief.  The applicant was 21 years
old at the time she received the Article 15 punishment, and 24 years old
when she was apprehended for possession and use of a controlled substance,
false swearing, and indecent acts with another female.

3.  The applicant has submitted neither probative evidence nor a convincing
argument in support of her request.  Her contentions that she was an
excellent Soldier, was discharged under false pretense, and was coerced
into signing her discharge are without foundation.  The evidence clearly
shows that her discharge resulted, in part, from her February 1982 UCMJ
action, her arrest for possession and use of a controlled substance, false
swearing, and indecent acts with another female, as well as her failure to
meet the height and weight standards.

4.  The type of discharge directed and the reasons therefore were
appropriate considering all the facts of the case.

5.  The actions by the Army in this case were proper, and there is no doubt
to be resolved in favor of the applicant.

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

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 May 1984; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
30 May 1987.  However, 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 RELIEF

________  ________  ________  GRANT FORMAL HEARING

___MM__  __TO ___  ___EP  __  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.




            _____Melvin Meyer______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004099897                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040727                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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