RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  16 October 2007
	DOCKET NUMBER:  AR20070004753 


	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.


Ms. Catherine C. Mitrano

Director

Mr. John J. Wendland, Jr.

Analyst

The following members, a quorum, were present:


Ms. Shirley L. Powell

Chairperson

Mr. James E. Anderholm

Member

Mr. Joe R. Schroeder

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, correction of her records to show a finding of not guilty to the specification and charge announced at her summary court-martial on 25 March 1981. 

2.  The applicant states, in effect, that the commissioned officer who gave her the instruction to button the collar of her uniform had a hearing problem and did not hear the applicant when she replied, “I am, ma’am.”  The applicant also states, in effect, that she was pregnant at the time, had severe morning sickness, and her first sergeant and company commander gave her permission to have her collar unbuttoned while she was in the company area.  The applicant adds, in effect, that she was in the company orderly room when the officer gave her the command to button the collar of her uniform.

3.  The applicant states that she enjoyed her job in the Army, was within 50 days of her expiration term of service (ETS), was getting ready to reenlist, and had not messed up during her entire enlistment up to that point.  The applicant also states, in effect, that the officer was scheduled to depart the unit, wanted to “make a mark” before she left, and that nobody, including the Judge Advocate General’s office, was willing to help her out at the time.  The applicant states that she was wronged because the officer stated to the Board that she had a hearing problem; nonetheless, the applicant was found guilty.  The applicant also states that after the summary court-martial verdict was rendered she learned that the lieutenant colonel, who was the battalion commander and serving as the summary court-martial officer, was a friend of the accusing officer and the applicant asserts his verdict was wrong.  The applicant concludes by stating she believes an injustice was perpetrated on her because she is black.  She also states she has been unable to reenter the Army because of her Reenlistment Eligibility (RE) Code.

4.  The applicant provides a copy of Headquarters, 101st Military Intelligence (MI) Battalion (Communication-Electronic Warfare and Intelligence (CEWI)), Fort Riley, Kansas, Summary Court-Martial Order Number 3, dated 2 April 1981  (front page, only).

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of 
Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the U.S. Army Reserve (USAR) for a period of
6 years on 17 April 1978 and entered active duty in the Regular Army (RA) for a period of 3 years on 21 April 1978.  Upon completion of basic combat training and advanced individual training, the applicant was awarded military occupational specialty (MOS) 71L (Administrative Specialist).  The applicant was promoted to the grade of specialist four (SP4)/pay grade E-4 on 1 October 1979. On 27 May 1981, she extended her 3-year enlistment a period of 13 months, to a period of 4 years and 1 month.

3.  The applicant’s military service records contain a copy of a DA Form 2627-1 (Record of Proceedings Under Article 15, UCMJ [Uniform Code of Military Justice]), which shows that the captain serving as the applicant’s commander notified her that he was considering whether she should be punished under Article 15, UCMJ, for, on or about 20 February 1980 (sic), conducting herself with disrespect toward First Lieutenant (1LT) Katherine M. L__, her superior commissioned officer, by behaving in a contemptuous manner when 1LT L__ gave the applicant specific direction.  Item 3 (Trial by Court-Martial is demanded.) of the DA Form 2627-1 shows the applicant placed her signature and the date (i.e., 26 February 1981) on the line immediately following this item, indicating that she demanded trial by court-martial.  This document also shows the applicant was advised that, “[i]n deciding what you want to do you have the right to consult with a lawyer located at Building 801, Patton Hall [Fort Riley, Kansas].”

4.  The applicant's military service records contain a DD Form 458 (Charge Sheet) that shows, on 4 March 1981, the captain serving as Commander, Company B, 101st MI Battalion (CEWI), Fort Riley, Kansas, preferred charges against the applicant for having received a lawful command from 1LT Katherine M. L__, her superior commanding officer, to button the collar of her uniform and to come over to speak with 1LT L__, did, on or about 20 February 1981, willfully disobey the same.  This document also shows that 3 statements, all dated
20 February 1981, were attached to the Charge Sheet, which included 

statements from 1LT Katherine M. L__, Staff Sergeant Brother Gene P. C__, and Sergeant Gabriel N. R__.  The statements confirm two noncommissioned officers (NCOs) were present during the incident and show that the NCOs stated, in pertinent part, “I overheard 1LT L__ talking to SP4 M__” and “Specialist M__ was insubordinate to an officer, 1LT L__.” 

5.  The applicant’s military service records contain a copy of Headquarters,
101st MI Battalion (CEWI), Fort Riley, Kansas, memorandum, dated 8 March 1981, subject:  Court-Martial Charges in the Case of Specialist Four Doretha M__, [Social Security Number], Company B, 101st MI Battalion (CEWI), Fort Riley Kansas.  This document shows that court-martial charges, which would not be disposed of under Article 15 proceedings, were forwarded to the Commander, Division Support Command, Fort Riley, Kansas, for disposition.

6.  On 25 March 1981, at a summary court-martial, the applicant entered a plea of not guilty and was found guilty by the summary court-martial of a violation of Article 90 of the UCMJ for, having received a lawful command from 1LT Katherine M. L__, her superior commanding officer, to button the collar of her uniform and to come over to speak to 1LT L__, did, at Fort Riley, Kansas, on or about 20 February 1981, willfully disobey the same.  Her sentence was that “[t]here will be no punishment.  (No previous convictions considered.)”

7.  Headquarters, 101st MI Battalion (CEWI), Fort Riley, Kansas, Summary Court-Martial Order Number 3, dated 2 April 1981, promulgated the summary court-martial and shows that the findings were announced on 25 March 1981.  This document also shows that the lieutenant colonel serving as the summary court-martial officer announced that in the foregoing case (of the applicant), “the action taken by [him] on 27 March 1981 is withdrawn and the following substituted therefor:  Approved.”

8.  On 24 December 1981, the applicant submitted a DA Form 3072 (Request for Waiver of Disqualification for Enlistment/Reenlistment).  On 7 April 1982, the U.S. Army Enlistment Eligibility Activity, St. Louis, Missouri, notified the applicant that her request for waiver of her court-martial record was not favorably considered based on current Army requirements and a complete review of the Soldier’s record.

9.  The applicant’s military service records contain a DD Form 214 (Certificate of Release or Discharge from Active Duty), with an effective date of 20 August 1982.  This document shows that the applicant was honorably released from active duty (REFRAD), on 20 August 1982, based on completion of required 
service (i.e., ETS) and transferred to the USAR Control Group (Reinforcement), St. Louis, Missouri.  Item 26 (Separation Code) contains the entry “LBK” and Item 27 (Reenlistment Code) contains the entry “RE-3.”  At the time of her separation the applicant had completed 4 years and 4 months net active service and
4 months prior inactive service.

10.  On 18 September 1987, the U.S. Army Enlistment Eligibility Activity,
St. Louis, Missouri, granted the applicant a waiver of court-martial conviction for the purpose of enlistment in the RA for a period not to exceed 4 years, provided the applicant was otherwise qualified.

11.  The applicant’s military service records show that she enlisted in the USAR for a period of 4 years on 28 June 1988 and entered active duty in the RA for a period of 4 years on 8 September 1988 for training in MOS 77F (Petroleum Supply Specialist).

12.  The applicant’s military service records contain a DD Form 214, with an effective date of 8 December 1988.  This document shows that the applicant was discharged from the Army on 8 December 1988, under the provisions of Army Regulation 635-200, paragraph 11-3a (Entry level status), and her service was uncharacterized.  At the time of her discharge the applicant had completed
3 months and 1 day net active service and 4 days prior inactive service during this period.

13.  Title 10 of the United States Code, section 1552, as amended, does not permit any redress by this Board of the finality of a court-martial conviction and empowers the Board to only change a discharge if clemency is determined to be appropriate.  

14.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. 
It identifies the SPD code of “LBK” as the appropriate code to assign RA enlisted Soldiers separated under the provisions of Army Regulation 635-200, Chapter 2, based on completion of required service (ETS).  The SPD/RE Code Cross Reference Table provides for the assignment of RE Code “RE-3” for members separated with this SPD code.

15.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that 
the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that her records should be corrected to show a finding of not guilty to the specification and charge announced at her summary court-martial because the officer who instructed her to button the collar of her uniform had a hearing problem and could not hear her reply; she was not provided any counsel or assistance at the time; the lieutenant colonel who was serving as the summary court-martial officer was a friend of the accusing officer; she has been unable to reenter the Army because of the RE code she was assigned; and that an injustice was perpetrated on her because she is black.

2.  The evidence of record shows that the applicant was properly and equitably discharged in accordance with the regulations in effect at the time and the correct SPD and RE codes were assigned and recorded on her DD Form 214, with an effective date of 20 August 1982.  In addition, the evidence of record shows that on 18 September 1987, the applicant was granted a waiver to reenter the RA.  Moreover, she subsequently enlisted in the USAR and then entered active duty in the RA.  Thus, the evidence of record fails to substantiate the applicant’s contention that her SPD and RE codes prevented her from reentering the Army.  Therefore, the applicant provides insufficient evidence in support of her claim that she was not allowed to reenter the Army because of the SPD and RE codes she was assigned.

3.  By law, the ABCMR may not upset the finality of a court-martial conviction.  Accordingly, the ABCMR is bound to denying the applicant’s request, regardless of her claims concerning the sufficiency of the evidence or procedural errors.

4.  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.







BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___SLP__  ___JEA__  ___JRS _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




_ ___Shirley L. Powell____
          CHAIRPERSON



INDEX

CASE ID
AR20070004753
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/10/16
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19820820
DISCHARGE AUTHORITY
AR 635-200, Chapter 2
DISCHARGE REASON
Completion of Required Service
BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
105.0100.0000
2.

3.

4.

5.

6.