RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 March 2007
	DOCKET NUMBER:  AR20060010537 


	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. Gerard W. Schwartz

Acting Director

Mr. Andrew C. Jacobs

Analyst

The following members, a quorum, were present:


Ms. Kathleen Newman

Chairperson

Mr. David Haasenritter

Member

Ms. LaVerne Douglas

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, a former male Soldier who subsequently had gender reassignment surgery and is now a female, requests that her general discharge be upgraded to an honorable discharge. 

2.  The applicant essentially states that she wants her discharge upgraded because she is seeking a career in law enforcement, and her general discharge is a disqualifying status in many agencies.  She also states, in effect, that she accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) on four occasions, and chose to leave with a general discharge.  She also essentially states that she was offered a general discharge, and accepted it because she thought this was a good way to get out of a bad situation. 

3.  The applicant provides two legal documents for two name changes, and a letter, dated 10 February 1999, from the surgeon who performed the applicant’s male-to-female gender reassignment surgery on 2 February 1999 in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 24 June 1985, the date of her discharge from the Regular Army.  The application submitted in this case is dated 16 July 2006.

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 military records show that she enlisted in the Regular Army on 
17 August 1983.  She completed basic and advanced individual training and was awarded military occupational specialty 91P (X-Ray Specialist).  After a brief permanent duty assignment at Fort Ord, California, she was reassigned to Fort Irwin, California.

4.  Between 3 April 1984 and 23 May 1985, the applicant accepted NJP under Article 15 of the UCMJ on at least three occasions.  Her offenses included breaking restriction, being disrespectful in language towards a superior noncommissioned officer (NCO), violating a lawful regulation on two occasions, and failing to obey a lawful order.  Collectively, her punishment consisted of one reduction in rank, and 25 days of extra duty, and restriction.

5.  On 28 May 1985, a mental status evaluation was conducted on the applicant. At the time of this evaluation, the medical officer determined that there was no evidence of mental disease, Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or defect or derangement sufficient to warrant medical disposition under the provisions of Separation).  The medical officer also believed that the applicant was not amenable to any form of punishment, retraining, or other forms of rehabilitation within the military service.  The medical officer concluded by stating that the applicant was psychiatrically cleared for separation from the service under the provisions of the appropriate administrative regulation.

6.  On 4 June 1985, the applicant’s commander essentially informed her that he was initiating action to discharge her from the United States Army under the provisions of Army Regulation 635-200 (Enlisted Personnel), Paragraph 
14-12b, for misconduct, in particular because:

a.  on 3 April 1984, for breaking restriction; on 5 December 1984, for insubordinate conduct towards an NCO, and failure to obey a lawful order; and

b.  on 23 May 1985, for failing to obey a lawful order.

7.  The applicant’s company commander also directed the applicant to take a statement of rights to the Trial Defense Service Office and consult with legal counsel concerning this action.  

8.  On 5 June 1985, the applicant acknowledged receipt of the aforementioned action.

9.  On or about 5 June 1985, the applicant consulted with legal counsel, and subsequently acknowledged that she had been advised by counsel of the basis for the contemplated action to accomplish her separation under the provisions of Army Regulation 635-200, Chapter 14, Paragraph 14-12b, and its effects; of the rights available to her, and the effect of any action taken by her in waiving her rights.  She elected not to submit a statement on her own behalf.

10.  On or about 19 June 1985, the proper authority approved the discharge of the applicant from the service under the provisions of the paragraph 14-12b, Army Regulation 635-200, and directed that she be issued a General Discharge Certificate.  

11.  On 24 June 1985, the applicant was discharged accordingly.  The 
DD Form 214 (Report of Separation From Active Duty) that was issued to her at the time of her discharge shows that she was discharged in the rank of private/pay grade E-2, and served 1 year, 10 months, and 2 days of active duty service.  Item 28 (Narrative Reason for Separation) of her DD Form 214 has an entry of “Misconduct – Pattern of Misconduct.

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

13.  The applicant essentially stated that she wants her discharge upgraded because she is seeking a career in law enforcement, and her general discharge is a disqualifying status in many agencies.  She also stated, in effect, that she accepted NJP under Article 15 of the UCMJ on four occasions, and chose to leave with a general discharge.  She also essentially stated that she was offered a general discharge, and accepted it because she thought this was a good way to get out of a bad situation. 

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  Action will be 
taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  Further, it also essentially states that a general discharge is normally appropriate for a Soldier discharged under this chapter.

15.  Army Regulation 635-200, paragraph 3-7a, 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.

16.  Army Regulation 635-200, paragraph 3-7b, 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 AND CONCLUSIONS:

1.  The applicant contends that her general discharge should be upgraded to an honorable discharge.

2.  Evidence of record shows that the applicant accepted NJP under Article 15 of the UCMJ on three occasions for multiple violations of the UCMJ.  She was also reduced in rank.  Given the high number of instances of misconduct, the applicant failed to provide evidence which proves that her discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the upgrade.  Absent such evidence, regularity must be presumed in this case.

3.  The applicant’s contention that she chose to leave with a general discharge is not substantiated.  She was involuntarily discharged for misconduct and issued a general discharge.  

4.  Evidence of record also confirms that her discharge processing was accomplished in accordance with applicable regulations and that her discharge accurately reflects her overall record of service.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case, and the Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

5.  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.

6.  The applicant’s record of indiscipline does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, she is not entitled to an honorable discharge.

7.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 24 June 1985; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
23 June 1988.  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

__KN  ___  __DH___  ___LD___  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.




_____Kathleen Newman_____
          CHAIRPERSON




INDEX

CASE ID
AR20060010537
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070320
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
19850624
DISCHARGE AUTHORITY
AR 635-200, CHAP 14, PARA 14-12b  
DISCHARGE REASON
MISCONDUCT
BOARD DECISION
DENY
REVIEW AUTHORITY
AR 15-185
ISSUES         1.
144.6750.0000
2.

3.

4.

5.

6.