RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 January 2008
	DOCKET NUMBER:  AR20070013182 


	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. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Mr. James E. Vick

Chairperson

Mr. Thomas M. Ray

Member

Mr. Jeffrey C. Redmann

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 correction of Item 28 (Narrative Reason for Separation) on her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show she was discharged for “Hardship” instead of “Unsatisfactory Performance.”

2.  The applicant states, in effect, that she was exposed to constant sexual harassment which was so intolerable that it caused her a hardship.

3.  The applicant provided the following additional documentary evidence in support of her application:

	a.  DD Form 214, dated 11 April 1984.

	b.  Headquarters, 573rd Personnel Service Company, Fort Bragg, North Carolina, Orders 67-41, dated 9 April 1984.

	c.  Self-authored letter, dated 13 August 2007.

	d.  Undated Friend Statement.

	e.  Department of Veterans Affairs Letter, dated 21 August 2006.

	f.  Secretary of Veterans Affairs Letter, dated August 2006.

	g.  Department of Veterans Affairs Fact Sheet 16-3, dated April 2006.

	h.  Department of Veterans Affairs Letter, dated 16 November 2006.

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's records show that she enlisted in the U.S. Army Reserve on 6 April 1981 for a period of 6 years under the Delayed Entry Program (DEP).  However, on 28 July 1981, she requested discharge from the DEP due to several conflicting problems including plans to marry her fiancé who was diagnosed with muscular dystrophy and plans to enroll in Cosmetology College.  She was discharged from the USAR DEP on 9 October 1981 accordingly.

3.  The applicant’s records further show that she enlisted in the Regular Army on 13 April 1982 for a period of 3 years.  She completed basic combat and advanced individual training (AIT) and was awarded military occupational specialty (MOS) 57H (Terminal Operations Coordinator).  Upon completion of AIT, she was assigned to the 58th Light Equipment Maintenance Company, Fort Bragg, North Carolina.  The highest rank she attained during her military service was private first class (PFC)/E-3.

4.  The applicant's records show that she was awarded the Army Service Ribbon and the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) during her active duty tenure.  Her records do not show any significant acts of valor during her military service.

5.  The applicant's records reveal a disciplinary history which includes her acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 23 November 1982, for disobeying a lawful order on 4 October 1982.  Her punishment consisted of forfeiture of $149.00 pay, 14 days of extra duty, and 14 days of restriction.

6.  On 7 December 1982, the applicant was interviewed by the Battalion Chaplain who remarked that she disliked military life, was unhappy because she did not work in her MOS, and had a problem dealing with sexual harassment from male troops.  He concluded that the applicant was a misfit and would never adjust to military life.  The Chaplain also remarked that she had severe problems in a predominantly male Army and had developed a mistrust of all males to include her chain of command which made obeying orders more difficult.  The Chaplain concluded by recommending the applicant be released from the Army.

7.  On 15 December 1983, the applicant was counseled by her immediate commander regarding her substandard performance throughout most of the year, lack of motivation, and non-cooperation with her platoon chain of command.  He referred her for psychiatric evaluation. 
8.  On 22 December 1983, the applicant underwent a psychiatric evaluation.  The military psychiatrist diagnosed her with an adjustment disorder with depressed mood, secondary to difficulty with the military.  He concluded that the applicant was mentally responsible and was cleared for any administrative actions deemed necessary by her chain of command.  

9.  On 20 January 1984, the applicant was interviewed by the Battalion Chaplain. After a careful review of her emotional state through counseling, the Chaplain opined that continued service was not in the best interests of the applicant or the Army and recommended the applicant be released from the Army.

10.  On 13 February 1984 the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for being disorderly while in uniform on 11 January 1984.  Her punishment consisted of reduction to the grade of private/E-2 (suspended for 6 months), forfeiture of $100 pay, and 14 days of extra duty.

11.  On 13 March 1984, the applicant's immediate commander initiated a memorandum advising the applicant of his intent to recommend her separation from the Army for unsatisfactory performance and disqualification for further service under chapter 13 of Army Regulation 600-200 (Personnel Separations).

12.  On 13 March 1984, the immediate commander initiated separation action against the applicant for unsatisfactory performance in accordance with chapter 13 of Army Regulation 635-200.  The commander stated that the applicant did not adapt to military life; her performance showed a clear lack of enthusiasm for job assignment; she was unproductive and during her assignment to the unit, her duty performance was unsatisfactory.  The immediate commander concluded that, in his judgment, reassignment for rehabilitation was not warranted and would not be beneficial because of her past performance and behavior.  He added that her retention would have an adverse impact on military discipline, good order, and morale. He recommended a General Discharge Certificate.

13. On 14 March 1984, the applicant underwent a mental status evaluation.  She was determined to have a normal behavior, dull level of alertness, fully oriented, normal thought content, and good memory.  

14.  On 15 Mach 1984, the applicant consulted with legal counsel and was advised of the basis for the contemplated action to separate her under the provisions of chapter 13 of Army Regulation 635-200 and its affects, of the rights 

available to her, and the effect of any action taken by her in waiving her rights.  She waived consideration of her case by a board of officers, waived personal appearance before a board of officers, and declined submitting a statement on her behalf.  

15.  On 22 March 1984, the separation authority approved the applicant's discharge from the Army for unsatisfactory performance and directed that she receive a General Discharge Certificate.  Accordingly, on 11 April 1984, the applicant was discharged.  The DD Form 214 she was issued confirms she was discharged for “Unsatisfactory Performance” in accordance with chapter 13 of Army Regulation 635-200, with an Under Honorable Conditions (General) Discharge.  This form also shows that she completed 1 year, 11 months, and 29 days of creditable active military service.

16.  In her self-authored statement, dated 13 August 2007, the applicant describes her difficulties adjusting to a predominantly male Army and describes occasions of sexual harassment she encountered during her military service.

17.  In an undated statement, another Soldier (a friend) who served with the applicant at the time describes the applicant’s inability to cope with the pressure of ignorant comments and unacceptable gestures and behavior from other members of the platoon as well as constant critique and criticism from her chain of command.

18.  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.

19.  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.


20.  Chapter 6 of Army Regulation 635-200 (Personnel Separations) governs separation because of dependency or hardship.  Paragraph 6-3 of Army Regulation 635-200 (Personnel Separations) states that Soldiers of the Active Army and the Reserve Components may be discharged or released because of genuine dependency or hardship.  The regulation provides that hardship exists when, in circumstances not involving death or disability of a member of a Soldier’s (or spouse’s) immediate family, separation from the Service will materially affect the care or support of the family by alleviating undue and genuine hardship.  Under this provision for hardship discharge, parenthood of married service women and sole parenthood are the two conditions under which separation may be granted.  Paragraph 6-3b(1) provides that a married service woman may apply for separation under hardship when she becomes a parent by birth, adoption, or marriage (stepparent) and whose child (or children) under 18 years of age reside within the household.  The regulation requires that the woman must submit evidence that the roles of parent and Soldier are incompatible and that she cannot fulfill her military obligation without neglecting the child or children.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the narrative reason for separation on her DD Form 214 should be changed from “Unsatisfactory Performance” to “Hardship” because she encountered sexual harassment at the time.

2.  There is no evidence in the applicant's record that sexual harassment contributed to her repeated poor performance or indiscipline.  The applicant was provided with multiple counseling by her chain of command as well as specialists at her installation; yet, it was determined that any rehabilitative transfer would not have yielded any positive results.

3.  There is no evidence in the applicant's records of a genuine dependency, hardship, parenthood, pregnancy, or immediate family problems.  The applicant was neither married nor had any children during her military service.  Additionally, there is no evidence in her records that show even if any of the hardship condition existed at the time, separation from the Army would have materially affected the care or support of any family members by alleviating undue and genuine hardship.

4.  The evidence of record confirms the applicant was notified of the contemplated separation action by her unit commander and that she consulted legal counsel.  It further shows that after being advised of the basis for the contemplated separation action and its possible effects, she voluntarily elected to waive her right to have her case considered by a board of officers and he elected not to submit a rebuttal statement in her own behalf.  
5.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant was discharged under the provisions of chapter 13 of Army Regulation 635-200. The only valid narrative reason for discharge permitted under that paragraph is "Unsatisfactory Performance.”  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 this requirement.  Therefore, she is not entitled to correction of her military records to show the narrative reason for his separation as “Hardship.”

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__jev___  __tmr___  __jcr___  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.




							James E. Vick
______________________
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.