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ARMY | BCMR | CY2008 | 20080016884
Original file (20080016884.txt) Auto-classification: Denied

		IN THE CASE OF:	  

		BOARD DATE:	        03 FEBRUARY 2009

		DOCKET NUMBER:  AR20080016884 


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 nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) be removed from her military records, and that her narrative reason for discharge be changed.

2.  The applicant essentially states that she was raped when a sergeant approached her immediately after a formation to inform her that she was given liberties with him only to escort her to a destination.  She also states that her narrative reason for discharge should be changed because she had a civil court obligation, and that before entering the military, an attorney tried to contact her with notice for her to appear in court, but that he was not successful.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated 
11 September 2008; an unsigned document, dated 12 September 2008, from the Department of Veterans Affairs (DVA) Medical Center in Washington, D.C.; pages 1 through 19 of Progress Notes that were printed by the DVA in Washington, D.C. on 12 September 2008; a separate Progress Note that was also printed on 12 September 2008; and a letter, dated 2 October 2008, from a Member of Congress representing the District of Columbia in support of this application.  





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 requested that NJP under Article 15 of the UCMJ be removed from her military records; however, there is no record and the applicant did not provide a copy of the referenced NJP.  As a result, this portion of the applicant's request will not be discussed further in these proceedings.

3.  The applicant's military records show that she enlisted in the Regular Army on 12 September 1996 [her DD Form 214 incorrectly shows that she entered active duty on 15 September 1996, but her enlistment contract clearly shows that she enlisted in the Regular Army on 12 September 1996].  She completed basic combat training and entered advanced individual training.  

4.  However, on 23 July 1997, the applicant was discharged under other than honorable conditions after she voluntarily requested discharge under the provisions of Chapter 10 (Discharge in Lieu of Trial by Court-Martial), Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) after charges were preferred against her for:

	a.  by means of deliberate concealment of the fact that she was arrested on 12 February 1995 for two counts of battery, one count of driving while intoxicated, one count of driving under the influence, one count of driving with a suspended license, and failing to appear on 13 June 1995 for which there was a warrant pending, procuring herself to be enlisted as a private (PV2)/E-2, and did thereafter receive pay and allowances under the enlistment so procured; and

	b.  on or about 6 June 1997, failing to go at the time prescribed to her appointed place of duty, behaving with disrespect toward her superior commissioned officer, willfully disobeying a lawful command from her superior commissioned officer on two occasions, willfully disobeying a lawful order from a noncommissioned officer (NCO), treating an NCO with disrespectful language, failing to obey a lawful order issued by a lieutenant colonel to not possess alcohol in the barracks, assaulting a military police Soldier by scratching her and pulling out her hair, being drunk and disorderly, being incapacitated for the proper performance of her duties as a result of wrongful previous overindulgence in intoxicating liquor, and breaking restriction.

5.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) that was issued to the applicant at the time of her discharge shows that she was discharged under other than honorable conditions.  Item 28 (Narrative Reason for Separation) of this document has an entry of "In Lieu of Trial by Court-Martial."

6.  In a letter, dated 27 October 2000, the Army Discharge Review Board (ADRB) informed the applicant that it was determined that she was properly and equitably discharged, and that her request for a change in the characterization of her service and/or reason for her discharge was denied.

7.  On 31 October 2003, as a result of a subsequent application, the ADRB upgraded the characterization of her service from under other than honorable conditions to general, under honorable conditions, and restored her rank and pay grade of private (PV2)/E-2.  However, it again found that the narrative reason for her separation was both proper and equitable.

8.  The applicant provided a DD Form 293, dated 11 September 2008, and stated in this document that she was born and raised in Southeast Washington, D.C., and that because her father was not present, her grandmother became very influential to her as a young child.  She also stated that as she grew older, she realized there were many pieces of the puzzle missing as to where she came from and that her mother was disconnected.  She further stated that when she turned 18 years old, all she wanted was independence, and that since then she has done a lot of good and not so good things that have molded her into who she is today.  Additionally, she stated that she is now a mature woman looking forward to her future as an independent and honest citizen.  She further stated that she is now divorced from an abusive and deceitful man and that she is on disability.

9.  The applicant also provided medical progress notes from the DVA which show she was treated by mental health professionals in 2007, and that she claimed to have been raped by her father, raped by a drill sergeant while on active duty, abused by her husband after she left the military, and became a prostitute to support her drug habit.

10.  Army Regulation 635-5 (Personnel Separations - Separation Documents) provides guidance on the preparation of the DD Form 214.  This regulation states that the narrative reason for separation is based on regulatory or other authority.

11.  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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate; however, the separation authority may direct a General Discharge Certificate, if such is merited by the member's overall record during the current enlistment.  

12.  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.  This 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 that her narrative reason for separation should be changed.

2.  The fact that the applicant was treated by mental health professionals in 2007 was noted, as was the applicant's claim that she was raped by a drill sergeant during her military service.  However, there is no evidence in the applicant's military records and the applicant failed to provide any evidence to substantiate this claim.

3.  The evidence provided by the applicant was carefully considered.  However, 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.

4.  It is clear that the applicant was charged with the commission of multiple offenses punishable under the UCMJ with a punitive discharge.  It is also clear that she voluntarily (emphasis added) requested discharge from the Army in lieu 

of trial by court-martial.  As she did not provide any evidence which shows that any requirements of law and regulation were not met or that her rights were not fully protected throughout the separation process, regularity must be presumed in this case.  Additionally, while the ADRB found it fit to upgrade the characterization of her service from under other than honorable conditions to general, under honorable conditions, it appropriately determined that her narrative reason for separation was both proper and equitable.

5.  The applicant's narrative reason for separation was based on her discharge under the provisions of Chapter 10, Army Regulation 635-200 due to her voluntary request for discharge in lieu of trial by court-martial.  As her DD Form 214 accurately reflects this as her narrative reason for her separation, there is no basis for changing it.  In view of the foregoing, there is no basis for granting relief to the applicant in this case.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X_____  ___X_____  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.



      ________XXX______________
               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)                                         AR20080016884



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ABCMR Record of Proceedings (cont)                                         AR20080016884



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