RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  4 April 2008
	DOCKET NUMBER:  AR20070018325 


	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. Eric N. Anderson

Chairperson

Mr. Peter B. Fisher

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 an upgrade of her discharge.

2.  The applicant states that: 

	a.  she was not given the proper legal advice regarding her discharge and that she was unable to fully understand the due process of the law and dispute anything presented to her at the time; 

	b.  she feared for her life due to sexual trauma and abuse she suffered in Korea, but was not offered any counseling or treatment to assist her with her trauma; and

	c.  she was an outstanding Soldier with commendations and the drive to succeed during her military service and continued her post service accomplishments by earning advanced academic degrees.

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

	a.  DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 17 March 1987.

	b.  Department of Veterans Administration (VA) Letter, dated 8 June 2007, disapproving her request for disability.

	c.  Mental Assessment and Counseling Notes. 

	d.  Applicant’s own statements/logs of events during her military service.

	e.  Certificate, dated 16 September 1983, awarding her the Army Commendation Medal.

	f.  Seven character reference letters, authored on miscellaneous dates.

	g.  College Diploma, Master of Social Work and Membership Certificate in an Honor Society.





	h.  Miscellaneous military records as follows: 

		1.  DD Forms 4 (Enlistment/Reenlistment Document-Armed Forces of the United States), dated 24 November 1981 and 4 January 1985.  

		2.  DA Form 2-1 (Personnel Qualification Record).  

		3.  DD Form 553 (Deserter/Absentee Wanted by the Armed Forces), dated 2 June 1986.    

		4.  DA Form 3836 (Notice of Return of U.S. Army Member from Unauthorized Absence), dated 13 August 1986.  

		5.  DD Form 458 (Charge Sheet), dated 4 January 1985.  

		6.  Chapter 10 Separation Approval Memorandum, dated 13 January 1987, and allied documents.     

		7.  Copies of chronological record of medical care from 1982 to 1986. 

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 Regular Army for a period of 3 years on 1 April 1982.  She completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 71L (Administrative Specialist).  Her records also show that she reenlisted for a period of 3 years on 4 January 1985.  The highest rank she attained during her military service was sergeant/E-5.
3.  The applicant's records show that she was awarded the Army Service Ribbon, the Overseas Service Ribbon, the Army Achievement Medal, the Army Commendation Medal, the Army Good Conduct Medal, the Marksmanship Qualification Badge with Rifle Bars (M-16), and the Noncommissioned Officer Professional Development Ribbon.   Her records do not show any significant acts of valor during her military service.

4.  The applicant's records show that she departed her unit in absent without leave status (AWOL) on 2 May 1986.  She was subsequently dropped from the Army rolls (DFR) on 2 June 1986.  She surrendered to military authorities at Fort Ord, California, on 13 August 1986. 

5.  On 20 August 1986, Court-Martial charges were preferred against the applicant for one specification of being AWOL during the period on or about 2 May 1986 through on or about 13 August 1986.  

6.  On 20 August 1986, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to her.  Following consultation with legal counsel, she requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

7.  In her request for discharge, the applicant indicated that she understood that by requesting discharge, she was admitting guilt to the charges against her, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions.  She further acknowledged she understood that if the discharge request was approved, she could be deprived of many or all Army benefits, that she could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. 

8.  On 13 January 1987, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army regulation 635-200 and directed she receive an Under Other Than Honorable Conditions Discharge Certificate and be reduced to private/E-1.  On 17 March 1987, the applicant was discharged accordingly.  The DD Form 214 she was issued at the time of her discharge shows that she was discharged for the good of the service with an Under Other Than Honorable Conditions character of service.  This form further confirms the applicant had completed a total of 4 years, 8 months, and 4 days of creditable active military service and had 103 days of lost time due to AWOL.

9.  The applicant submitted a copy of the VA letter, dated 8 June 2007, that shows she did not qualify for VA benefits due to the Under Other Than Honorable Conditions character of service.

10.  The applicant submitted a copy of her certificate, dated 16 September 1983, showing she was awarded the Army Commendation Medal for meritorious service during her tour in Korea.

11.  The applicant submitted a copy of the Northwest Family Center, Fresno, California, mental assessment and counseling notes, dated 10 January 2007.  The author, a licensed clinical social worker, remarked on the applicant’s panic anxiety and depression, as well as progress in her ability to address past events caused by major trauma connected to sexual, physical, and psychological assault.  The social worker further stated that the applicant continues to need counseling and therapy in the future, but has finally developed enough strength to report this episode of trauma as a means of correcting the resultant symptoms and behaviors that were directly caused by the assault.

12.  The applicant submitted a detailed diary of her experience in the military to include basic training at Fort Jackson, South Carolina, first assignment in Korea, marriage to another Soldier, AWOL, and divorce.  She describes in gruesome details how she was raped and sodomized by fellow male and female Soldiers in her unit and how she contracted venereal disease as a result of this sexual assault.  She further details the prevailing homosexual conduct among female Soldiers in Korea and the lack of concern by her chain of command.  She also states that after marrying her husband, they both went back to Korea, where she, again, suffered from female sexual harassment.  She requested a compassionate reassignment at Fort Ord, California, as a result of the terrifying exposure to an environment of violence, intimidation, alcohol abuse, and perceived threat to life; but, she states her request was not favorably considered and she decided to go AWOL.  She concludes that she suffered a lot during her military career and only asks that her rank be restored and her discharge be upgraded.

13.  The applicant submitted seven character reference letters, dated on miscellaneous dates, authored by friends, family members, colleagues, and professionals.  The authors remarked on the applicant’s professionalism, inner drive to overcome life challenges, dedication to her education and family, high level of integrity, and outstanding character and standing in her community. 

14.  The applicant submitted a copy of her college diploma, dated 28 May 2005, showing she earned a Master of Social Work degree with distinction at California State University.  She also provided a copy of her certificate showing she is a member of The Honor Society of “Phi Kappa Phi” Chapter at California State University, Fresno, California.  

15.  On 20 March 1998, the Army Discharge Review Board (ADRB) denied the applicant’ s request for an upgrade of her discharge. 

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

17.  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.

18.  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 discharge should be upgraded.

2.  With respect to the applicant’s arguments:  

	a.  Evidence of record shows that on 20 August 1986, she consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for her offense, the maximum permissible punishment authorized under the UCMJ, the possible effects of her request for discharge, and of the procedures and rights that were available to her.  Following consultation with legal counsel, she willingly and voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  She authenticated her request for discharge by placing her initials and/or her signature on the form;   

b.  There is no evidence in the applicant’s records that she reported her alleged sexual assault or threat to life to her chain of command, military police, criminal investigation command (CID), chaplain, or any of the support channels available at her installation.  Furthermore, there is no evidence in the available records and the applicant has not provided sufficient evidence showing that her act of indiscipline was the result of her alleged sexual trauma and abuse.  While it is unfortunate for any Soldier to be in that situation, the chain of command and the support channels can only provide counseling and/or treatment if they are aware of a particular situation; and

	c.  The applicant’s post-service successful employment, stable family, outstanding academic achievements and contributions to the community and society were noted.  Additionally, the character reference letters submitted by family members, friends, and others were also noted.  Unfortunately, post service achievements are insufficient by themselves to warrant an upgrade of a discharge. 

3.  The applicant’s record shows she was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trail by court-martial.  The applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  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 service.

4.  Based on her record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders her service unsatisfactory.  Therefore, the applicant is not entitled to either a general or an honorable discharge.

5.  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 an honorable discharge.

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__ena___  __pbf___  __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.




							Eric N. Anderson
______________________
          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.