RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        10 May 2007
      DOCKET NUMBER:  AR20060013890


      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. Luis Almodova                 |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Mr. Kenneth L. Wright             |     |Chairperson          |
|     |Mr. Patrick H. McGann, Jr.        |     |Member               |
|     |Ms. Karmin S. Jenkins             |     |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, in effect, that her dishonorable [actually her
under other than honorable conditions discharge] be upgraded.

2.  The applicant states, in effect, that she is disabled and has mental
problems.  She implies her disability and mental problems are service-
connected and adds that she has already submitted documents.

3.  The applicant provides no additional documentary evidence, beyond her
DD Form 149, Application for Correction of Military Record, in support of
her application to the Board.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or
injustice that occurred on 15 September 1982, the date she was notified by
the Army Discharge Review Board (ADRB) it had determined, based on her
military records and all other available evidence, she had been properly
discharged.  The application submitted in this case is dated 12 July 2006
and was received for processing on 3 October 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 record shows she enlisted in the US Army Reserve,
Delayed Enlistment / Entry Program, for 6 years, on 10 July 1978.  She
enlisted in the Regular Army, for 3 years, and entered active duty on 8
August 1978.  She completed her basic combat training and her advanced
individual training at Fort Jackson, South Carolina.  After completing all
required training, he was awarded the military occupational specialty
(MOS), 71L (Administrative Specialist).

4.  On 23 May 1979, the applicant received nonjudicial punishment, under
the provisions of Article 15, of the Uniform Code of Military Justice
(UCMJ), for failing to go at the time prescribed to her place of duty, on
2 May 1979; for absenting
herself without proper authority from her place of duty, on 14 May 1979;
for willfully disobeying her superior noncommissioned officer, on 14 May
1979; and for additional violations which were continued apart from the
copy of the partial DA Form 2627, Record of Proceedings under Article 15,
UCMJ, which is on file in her service record.  The imposed punishment was
a reduction to pay grade E-1, suspended for 60 days, and 14 days extra
duty.

5.  On 7 December 1979, the applicant received non-judicial punishment,
under the provisions of the UCMJ, for willfully disobeying her superior
commissioned officer on 27 November 1979.  The imposed punishment was a
reduction to pay grade E-2, suspended for 180 days; forfeiture of $100.00
pay for one month; and 14 days extra training.  The applicant appealed the
punishment imposed and on 20 December 1979, her appeal was denied by the
appropriate authority, her battalion commander.

6.  On 9 May 1980, the applicant received non-judicial punishment, under
the provisions of the UCMJ, for failing to go at the time prescribed to her
place of duty, on 30 April 1980.  The imposed punishment was a forfeiture
of seven days pay ($121.00); and 14 days extra duty and restriction.

7.  On 12 May 1980, the applicant received non-judicial punishment, under
the provisions of the UCMJ, for failing to go at the time prescribed to her
place of duty, on 30 April 1980.  The imposed punishment was a forfeiture
of seven days pay ($121.00); and 14 days extra duty and restriction.  The
applicant appealed the punishment imposed on the same date.  Her appeal was
denied by the appropriate authority, her battalion commander, on 13 May
1980.

8.  On 15 May 1980, the applicant's unit commander prepared a DA Form 2627.
 In Part III (Attachments and/or Comments), he set aside the punishments
that had been imposed on the applicant by him on 9 May 1980.

9.  On 16 May 1980, the applicant's commander vacated the suspension of the
punishment of forfeiture of $121.00 that had been imposed on her on 12 May
1980.

10.  On 12 June 1980, the applicant's commander initiated action to bar her
from reenlistment.  The commander based his recommendation on her having
received nonjudicial punishment on two occasions while she was a member of
his unit and had been transferred there for rehabilitation purposes.  On 10
July 1980, the approving authority approved the bar to reenlistment.  When
presented the bar to reenlistment for her acknowledgement, the applicant
refused to sign and stated she did not want out of the Army.

11.  On 23 June 1980, the applicant received non-judicial punishment, under
the provisions of the UCMJ, for failing to go at the time prescribed to her
place of duty, on 13 June 1980; and for willfully disobeying her superior
commissioned officer, on 13 June 1980.  The imposed punishment was a
reduction in pay grade to pay grade E-2; forfeiture of 7 days pay ($121.00)
and 14 days restriction.  The applicant did not appeal the punishment
imposed.

12.  There is evidence the applicant received and was convicted by a
special court-martial for violation of the UCMJ; however, the special court
martial order is not available in the applicant's service record for review
by the Board.  The ADRB Case Report and Directive shows a summary of the
charges and specifications.  These include:  disrespect to a superior
commissioned officer (two specifications), offering violence to a
commissioned officer, disobeying a lawful command from a commissioned
officer (two specifications), assault on an officer, and absence without
leave from 11 to 14 July 1980.

13.  The applicant was evaluated by the Psychiatry Service, Irwin Army
Hospital, for the period 18 through 29 August 1980.  She was diagnosed to
have a passive-aggressive personality, with anti-social, immature,
histrionic, and mixed features.  The examining staff psychiatrist opined
that the applicant, at the time of the alleged offenses did not lack
substantial capacity to appreciate the criminality of her conduct and did
not lack substantial capacity to conform her conduct to the requirements of
the law.  The accused, he stated, understood the nature and seriousness of
the charges and was mentally capable of cooperating in her own defense.
Over the period of her observation, the applicant showed no evidence of any
psychotic process or organic brain symptom.  She appeared to be of low
normal intelligence, and had a rich, and at times idiosyncratic, fantasy
life, which she knew to be fantasy.  She had demonstrated many manipulative
and passive-aggressive features on the ward and had poor insight and
judgment.  Although she understood the nature and seriousness of the
charges, she did not take the possibility of the court-martial seriously.
She had demonstrated stubborn tendencies and responded poorly to authority.
 She was, he opined, likely to continue to act out in the confinement
facility.
14.  A copy of Special Court-Martial Order Number 62, prepared by
Headquarters, 3rd Battalion, US Army Retraining Brigade, Fort Riley,
Kansas, dated 20 February 1981, remitted the unexecuted portion of the
approved sentence to confinement at hard labor for 6 months adjudged on 20
September 1980.  The service of the approved sentence to confinement at
hard labor for six months was deferred on 17 October 1980, and the
deferment was rescinded on 29 October 1980.

15.  On 29 October 1980, the applicant's unit commander notified her he was
recommending that she be discharged from the Army under the provision of
Army Regulation (AR) 635-200, chapter 14.  With the notification, he
presented her with a resume of her conduct, attitude, and performance and
discreditable acts [a list of 37 separate acts] which were the foundation
of his action.  In the notice, her rights were explained to her.  It was
explained she had the right to consult with consulting counsel, present her
case before a board of officers, submit a statement in her behalf, be
represented at a hearing by counsel for representation, and to waive the
rights mentioned.  In addition, she had the right to withdraw her waiver of
rights any time before the discharge authority directed or approved her
discharge and to present her case before a board of officers.  The
applicant acknowledged the notification on 25 November 1980.

16.  On 21 November 1980, the applicant's commander recommended she
be discharged from the Army, under the provisions of AR 635-200, chapter
14, due to her misconduct and frequent incidents of a discreditable nature.
 Her discharge for unsuitability, he stated, was not deemed appropriate
because her behavior was not due to an inability to satisfactorily perform
within the meaning of unsuitability.  The individual's records since her
arrival in the retraining brigade precluded accomplishment of the objective
of rehabilitation as evidenced by her behavior, attitude, and ability.  She
had demonstrated little desire to return to duty.  She had received
counseling by members of the leadership team and members of profession
staff agencies.  He opined the applicant had the mental and physical
ability necessary to be an effective Soldier but her record and her failure
to react constructively to the rehabilitation program were indicative she
should not be retained in service.  He recommended that further counseling
and rehabilitation, required by AR 635-200, be waived.

17.  On 25 November 1980, the applicant waived a personal appearance before
and consideration of her case before a board of officers.  She declined to
make a statement in her own behalf and waived representation by consulting
counsel.
18.  The applicant's chain of command recommended approval of the
recommendation to discharge her from service prior to her normal ETS
(expiration of her term of service).  On 29 January 1981, the appropriate
authority, the special court-martial convening authority, a colonel,
approved her discharge and directed she be furnished an under other than
honorable conditions discharge certificate.  Further rehabilitation
required by AR 635-200 was waived.

19.  The applicant was discharged with an under other than honorable
conditions discharge, in the rank/pay grade, Private/E-1, on 24 February
1981, under the provisions of AR 635-200, chapter 14, paragraph 14-
33b(1), for her frequent involvement in incidents of a discreditable
nature with civil or military authorities.  On the date of her discharge,
the applicant had completed 1 year, 11 months, and 12 days active
military service with 209 days time lost due to AWOL and confinement.

20.  The applicant’s record shows the highest rank and pay grade she held
on active duty was Private First Class, E-3.  The applicant's service
records contain no documented acts of valor, achievement, or service
warranting special recognition.

21.  The applicant applied to the ADRB for an upgrade of her discharge on
13 April 1982.  On 15 September 1982, the applicant was notified that after
careful consideration of her military records and all other available
evidence, the ADRB had decided that she had been properly and equitably
discharged and that her request for a change in the type and nature of her
discharge had been denied.

22.  AR 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, and convictions by civil authorities.
Action will be taken to separate a member for misconduct when it is
clearly established that rehabilitation is impracticable or is unlikely
to succeed.  Although an honorable discharge or general discharge may be
issued, an under other than honorable conditions discharge is normally
appropriate for a Soldier discharged under this chapter.

23.  AR 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, 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.

24.  AR 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 separation specifically allows such characterization.

25.  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 ADRB are by statute allowed 15 years to apply there,
and that this Board's exhaustion requirement (AR 15-185, paragraph 2-8),
effectively shortens that filing period, has determined that the 3-year
limit on filing to the 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.  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.

2.  The evidence of record shows the applicant was subjected to multiple
non-judicial punishment actions and a special court-martial for her acts of
misconduct.  This misconduct included:  absenting herself without authority
from her appointed place of duty, being absent without leave, being
disrespect to a superior commissioned officer, offering violence to a
commissioned officer, disobeying a lawful command from a commissioned
officer, and assaulting an officer.  Through this established and continued
pattern of misconduct, which included minor disciplinary infractions and
serious offenses which resulted in her trial before a special court-
martial, she clearly established that her
rehabilitation was impracticable or unlikely to succeed.  The record shows
that at the time of the recommendation for her discharge, she was at the US
Army Retraining Brigade undergoing the retraining and rehabilitation
process.

3.  The evidence shows the applicant's separation processing was
accomplished in accordance with applicable regulation.  All requirements
of law and regulation were met, and the rights of the applicant were
fully protected throughout the separation process.  Further, the
applicant's discharge accurately reflects her overall record of
undistinguished service, which is not sufficiently meritorious to warrant
an upgrade to either a general, under honorable conditions, or an
honorable discharge.

4.  Records show the applicant exhausted her administrative remedies in
this case when her case was last reviewed by the ADRB on 15 September 1982.
 As a result, the time for him to file a request for correction of any
error or injustice to this Board expired on 14 September 1985.  She failed
to 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.

5.  The Board noted the applicant's report that she is disabled and has
mental problems that are service-connected; however, prior to her discharge
from active duty, the applicant was observed and examined by a psychiatrist
and it was found she had a passive-aggressive personality, with anti-
social, immature, histrionic, and mixed features.  She had demonstrated
stubborn tendencies and responded poorly to authority.  She had substantial
capacity to appreciate the criminality of her conduct and had substantial
capacity to conform her conduct to the requirements of the law.  When court-
martial charged were preferred against her, she understood the nature and
seriousness of the charges and was mentally capable of cooperating in her
own defense.  Over the period of her observation, she showed no evidence of
any psychotic process or organic brain symptom.  It is apparent her
psychological state of mine at the time of her discharge did not require
her referral to a medical or physical evaluation board and her disposition
through medical channels.

6.  It has been over 26 years since her discharge and although unfortunate,
if her report is true, she did not provide any evidence to substantiate her
report her current disabilities and mental problems are service-connected.
The applicant is advised to visit her nearest VA counselor to seek
information about her eligibility and entitlement to benefits and programs
to which she may be entitled as a result of her service.

7.  In view of the foregoing, there is no basis for upgrading the
applicant's under other than honorable conditions discharge to either a
general, under honorable conditions, discharge or to an honorable
discharge.

8.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 15 September 1982.
 As a result, the time for the applicant to file a request for correction
of any error or injustice to this Board expired on 14 September 1985.
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 FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___KLW_  __PM___  __KSJ___  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.




                                  _____Kenneth L. Wright__
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060013890                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070510                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19810224                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chapter 14                  |
|DISCHARGE REASON        |Frequent Involvement in incidents of a  |
|                        |discreditable nature with civil or      |
|                        |military authorities.                   |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |



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