IN THE CASE OF:	  

		BOARD DATE:	  	  16 October 2008

		DOCKET NUMBER:  AR20080012825 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that her general discharge under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states, in effect, that she entered military service in 1979, when she was only 17 years of age, and began encountering problems with her first sergeant and company commander in September 1980 while stationed at Fort Sill, Oklahoma.

     a.  The applicant states that her first sergeant wanted to sleep with her, but she refused.  She also states that he would bang on her door in the barracks and harass her while she was off duty.  She also states that she informed her company commander, but he sided with the first sergeant.  The applicant adds that, at this time, she was also notified of her assignment to Germany and was told she would only be able to go if the company commander signed her papers.  The company commander told her the only way he would sign her papers was if she slept with the first sergeant.  

     b.  The applicant states that she refused to sleep with the first sergeant and was told by him that he would make her life very difficult.  The applicant also states that she went to the chaplain about the matter, but was told “they had the good old boys system working and it would be [her] against them” and “that sexual harassment would be hard to prove with the two of them against [her]” since the final determination would be made by the company commander.

     c.  The applicant states that she began drinking a lot, she took some pills while drinking alcohol, and ended up in the hospital.  She adds that the company commander still refused to sign her papers for reassignment to Germany unless she “played there (sic) game.”  The applicant further states, at this point, she became very depressed and felt her life was ruined.  She adds that she no longer had the desire to be in the service and was separated with a general discharge under honorable conditions.

     d.  The applicant states that when she received her discharge papers, the individual at the Separation and Transition Center felt bad and issued her an Honorable Discharge Certificate to take home.  She adds that, if there were any way possible, she would clear up her general discharge under honorable conditions and receive benefits.

     e.  The applicant concludes by adding that she developed shin splints during Basic Combat Training and her shins are ruined as a result of this.

3.  The applicant provides a self-authored statement, undated; DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 23 May 2008; DD Form 214 (Certificate of Release or Discharge from Active Duty), with an effective date of 23 January 1981; and DD Form 256A (Honorable Discharge Certificate), dated 23 January 1981.  

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 military service records show that she enlisted in the U.S. Army Reserve on 14 January 1980 and entered active duty in the Regular Army for a period of 4 years on 5 February 1980.  The applicant’s military service records show that her date of birth is 7 April 1961.  Upon completion of basic combat and advanced individual training, she was awarded military occupational specialty (MOS) 63B (Light Wheel Vehicle and Power Mechanic).
3.  The applicant's military service records contain a copy of a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ [Uniform Code of Military Justice]), dated 18 September 1980, that shows nonjudicial punishment was imposed by the company commander against the applicant for, on or about
0615 hours, 11 September 1980, as a result of previous indulgence in intoxicating liquor, the applicant was incapacitated for the proper performance of her duties, in violation of Article 134, UCMJ.  The punishment imposed was forfeiture of $50.00, 14 days extra duty, and reduction to E-1 (suspended for
90 days).

4.  The applicant's military service records contain a copy of a DA Form 2173 (Statement of Medical Examination and Duty Status) with enclosures.  This documentation shows that a line of duty investigation (LODI) was conducted based on an incident occurring at 0600 hours, 11 September 1980, in which the applicant acknowledged she voluntarily overindulged in alcoholic consumption of an unknown type and a quantity of drugs to commit suicide.  This documentation shows that the determination made in the applicant’s case was “Not in Line of Duty - Due to Own Misconduct.”  The LODI includes a copy of Headquarters,
3rd Battalion, 18th Field Artillery, Fort Sill, Oklahoma, memorandum, dated
27 October 1980, that shows the captain serving as Chaplain, 3rd Battalion,
18th Field Artillery Group, documented that he counseled the applicant on
3 separate occasions and learned she was having great difficulty in adjusting to military service.  This document also shows that the chaplain stated that the lifestyle the applicant felt coerced to conform to was causing her to have extreme value conflicts causing her to become very emotional and go into a state of depression.

5.  On 14 January 1981, the applicant was notified by her company commander that separation action under the provisions of Army Regulation 635-200, Chapter 5 (Separation for Convenience of the Government), paragraph 5-31 (Expeditious Discharge Program (EDP)) was being initiated against her and that a general discharge was being recommended.  The reasons for the separation action cited by the company commander were the applicant’s failure to respond positively to disciplinary actions, rehabilitative transfer, performance counseling, and many other rehabilitative actions, as evidenced by numerous acts of alcoholic-related misconduct.  The company commander also noted that he had counseled the applicant several times concerning her disposition and that her inability to cope with her personal problems rendered the applicant an administrative and supervisory burden, and a nonproductive Soldier.  The company commander also advised the applicant that she had the right to decline this discharge and, if she declined and her subsequent conduct warranted, she may be subject to disciplinary or administrative separation procedures under other provisions of law or regulation.
6.  The applicant acknowledged that she received the separation notification, she voluntarily accepted discharge from the Army, and waived her right to submit statements in her own behalf.  The applicant also acknowledged that, if she received a general discharge, she understood its effects and that she could expect to encounter substantial prejudice in civilian life.  The applicant’s statement also shows she was provided counsel by Captain Linda L. F______, Defense Counsel, Judge Advocate General Corps.

7.  The applicant’s administrative separation packet contains a Medical Examination for Separation/Retirement, Statement of Option, dated 15 January 1981.  This document shows the applicant indicated that she did not desire a separation medical examination and placed her signature on this document.

8.  On 15 January 1981, the applicant’s company commander recommended the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 5-31, and furnished a General Discharge Certificate.  The company commander added that the applicant’s discharge from military service was in the best interest of the Army, the unit, and the applicant.

9.  On 16 January 1981, the lieutenant colonel serving as Commander,
2nd Battalion, 37th Field Artillery, Fort Sill, Oklahoma, approved the separation action and directed the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 5-31, and furnished a General Discharge Certificate.

10.  The applicant’s military service records contain a DD Form 214, with an effective date of 23 January 1981.  This document confirms that the applicant was discharged under honorable conditions under the provisions of Army Regulation 635-200, paragraph 5-31h(2), EDP based on failure to maintain acceptable standards for retention, and issued Separation Program Designator (SPD) Code “JGH.”  This document also shows that, at the time of her discharge, the applicant was credited with completing 11 months and 19 days net active service this period and 21 days total prior inactive service.

11.  The applicant's military service records document no acts of valor, significant achievement, or service warranting special recognition.

12.  There is no evidence showing the applicant applied to the Army Discharge Review Board requesting a change regarding the reason or character of service of her discharge within its 15-year statute of limitations.



13.  In support of her application, the applicant provides a DD Form 293, dated
23 May 2008; self-authored statement, undated; and DD Form 214, with an effective date of 23 January 1981.  The self-authored statement was summarized in the applicant’s request and the 2 other documents were previously introduced and considered in this Record of Proceedings.  The applicant also provides a copy of her DD Form 256A, dated 23 January 1981, that shows Sergeant First Class Larry E. M_________, Acting as Assistant Adjutant General, issued the applicant an Honorable Discharge Certificate from the U.S. Army on 23 January 1981.

14.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time of the applicant's separation from active duty, provided the authority for separation of enlisted Soldiers upon expiration of term of service (ETS); authority and general provisions governing the separation of enlisted Soldiers prior to ETS to meet the needs of the Service and its members; procedures for implementation of laws and policies governing voluntary retirement of enlisted Soldiers of the Army by reason of length of service; and the criteria governing the issuance of honorable, general, and under other than honorable conditions discharge certificates.  Chapter 5 (Separation for Convenience of the Government) set forth the conditions under which enlisted personnel could be discharged, released from active duty or active duty for training, or released from military control for the convenience of the Government with service characterized as honorable or under honorable conditions, as appropriate.  Paragraph 5-31 (Expeditious Discharge Program) provided for the separation of Soldiers who demonstrated that they could not or would not meet acceptable standards required of enlisted personnel in the Army.  This document also shows, in pertinent part, an enlisted Soldier may be separated under the provisions of the EDP when they fail to respond to counseling for one or more of the following conditions:  poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, and/or failure to demonstrate promotion potential.  It also provides that personnel whose performance of duty, acceptability for the Service, and potential for continued effective service falls below standards required for enlisted personnel in the U.S. Army may be discharged.  An honorable discharge or general discharge could be issued under this program.  

15.  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 “JGH” as the appropriate code to assign enlisted Soldiers involuntarily discharged under the provisions of Army Regulation
635-200, Chapter 5, paragraph 5-31, for failure to maintain acceptable standards for retention.
16.  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, 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.

17.  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, in effect, that her general discharge under honorable conditions should be upgraded to an honorable discharge because she was only 17 years of age, was sexually harassed by her first sergeant and company commander, and would like to clear her record and receive benefits.

2.  The evidence of record confirms that the applicant was 18 years of age when she enlisted and entered active duty in the Army; 19 years of age when she voluntarily overindulged in alcoholic consumption of an unknown type and a quantity of drugs to commit suicide: and nearly 20 years of age when she was discharged from the U.S. Army.  Thus, the evidence of record refutes the applicant’s claim that she was only 17 years of age while serving in the U.S. Army.  In addition, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who served on active duty in the U.S. Army and successfully completed military service during this period.

3.  The evidence of record shows that the applicant indicated she did not desire a medical examination at the time of her separation processing.  In this regard, there is no medical evidence of record that shows the applicant suffered from shin splints at that time.  Therefore, in view of the foregoing, the applicant provides insufficient evidence to show that she developed shin splints during Basic Combat Training.

4.  There is no evidence of record, and the applicant provides insufficient evidence, to show that she was sexually harassed by her first sergeant and/or company commander.  In addition, the evidence of record shows that the statement submitted during the LODI by the Army chaplain fails to provide any substantive evidence to support the applicant’s claim of sexual harassment.  Moreover, the evidence of record shows that the applicant’s counsel during her separation processing was a female Judge Advocate General Corps officer, yet there is no evidence showing the applicant raised the issue of sexual harassment to this officer at the time she was being offered legal counsel on her discharge.

5.  The evidence of record shows that the applicant’s discharge processing was accomplished in accordance with the applicable regulation in effect at the time.  All requirements of law and regulation were met and the applicant’s rights were protected throughout the separation process.  The evidence of record further confirms that the applicant voluntarily consented to the discharge.  In addition, the evidence of record shows that the authority, narrative reason, and SPD Code recorded on the applicant’s discharge are valid.  

6.  The evidence of record shows that the applicant’s company commander recommended the applicant’s discharge under the Expeditious Discharge Program based upon her failure to respond positively to disciplinary actions, performance counseling, rehabilitative actions, and punishment under Article 
The evidence of record also shows the commander counseled the applicant several times concerning her disposition and that her inability to cope with her personal problems rendered the applicant an administrative and supervisory burden, and a nonproductive Soldier.  In addition, the evidence of record shows that the applicant completed less than 12 months of her 48-month enlistment commitment.  Thus, the evidence of record clearly shows the applicant’s relatively short record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to an honorable discharge.

7.  As a matter of information and in response to the applicant’s request, the ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for employment or government benefits.

8.  The evidence shows that the applicant was either improperly or erroneously issued a DD Form 256A (Honorable Discharge Certificate), dated 23 January 1981.  Therefore, administrative action should be taken to issue the applicant the appropriate discharge certificate as outlined in paragraph 2 of the BOARD DETERMINATION/RECOMMENDATION section, below.

9.  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

____X__  _ __X_____  ___X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.  The Board determined that administrative error in the records of the individual should be corrected.  Therefore, the Board requests the Army Review Boards Agency Case Management Support Division – St. Louis administratively correct the records of the individual concerned by issuing a DD Form 257A (General Discharge Certificate) showing the applicant was discharged under honorable conditions on 23 January 1981.



      __________X____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080012825



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ABCMR Record of Proceedings (cont)                                         AR20080012825



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