IN THE CASE OF:	  

		BOARD DATE:	  	  29 January 2009

		DOCKET NUMBER:  AR20080017927 


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, upgrade of her discharge, characterized as under other than honorable conditions, to an honorable discharge.

2.  The applicant states, in effect, she suffered sexual violations toward her and unfair treatment from peers of the perpetrators during her military service.  She also states “the documents are on file of the crime.”  The applicant further states the affects of her mental affliction are now apparent as she seeks professional help.  The applicant concludes by stating she suffers from bi-polar syndrome and is under psychiatric care.

3.  The applicant provides a Department of Veterans’ Affairs (VA), Attachment A, in support of her 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's military personnel records show she enlisted in the U.S. Army Reserve Delayed Entry Program for a period of 8 years on 23 June 1988.  She then enlisted in the Regular Army and entered active duty for a period of 3 years on 6 September 1988.  Upon completion of basic combat and advanced individual training, she was awarded military occupational specialty (MOS) 88M (Motor Transport Operator).

3.  The applicant's military personnel records contain a DA Form 4187 (Personnel Action), dated 21 June 1989, that shows her duty status was changed from present for duty (PDY) to absent without leave (AWOL) effective
0630 hours, 26 April 1989.

4.  The applicant's military personnel records contain a DA Form 4187, dated
21 June 1989, that shows her duty status was changed from AWOL to dropped from rolls (DFR) effective 0630 hours, 25 May 1989.

5.  The applicant's military personnel records contain a DA Form 4187-E (Personnel Action), dated 16 November 1989, that shows her duty status was changed from DFR to attached/return to military control effective 1330 hours,
10 November 1989.

6.  The applicant's military personnel records contain a copy of Headquarters, U.S. Army Field Artillery Center and Fort Sill (USAFACFS), Fort Sill, Oklahoma, Orders 320-32, dated 16 November 1989, that show she was assigned to the Personnel Control Facility, Headquarters Command, USAFACFS, Fort Sill, Oklahoma, effective 10 November 1989.

7.  The applicant's military personnel records contain a DD Form 458 (Charge Sheet), dated 14 November 1989, that shows the Commander, Personnel Control Facility, Headquarters Command, USAFACFS, Fort Sill, Oklahoma, preferred charges against the applicant for violation of the Uniform Code of Military Justice (UCMJ), Article 86, with Specification 1 that the applicant did, on or about 13 March 1989, without authority, absent herself from her organization, to wit:  546th Transportation Company (TC), 189th Maintenance Battalion, located at Fort Bragg, North Carolina, and did remain so absent until on or about 11 April 1989; and with Specification 2 that the applicant did, on or about 26 April 1989, without authority, absent herself from her organization, to wit:  546th TC, 189th Maintenance Battalion, located at Fort Bragg, North Carolina, and did remain so absent until on or about 10 November 1989.

8.  On 15 November 1989, the applicant requested a discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 (Discharge for the Good of the Service).  The applicant's legal counsel certified that she had advised the applicant of the basis for the contemplated trial by court-martial under circumstances which could lead to a discharge under other than honorable conditions if the request is approved, of the effects of the request for discharge, and the procedures and rights available to the applicant.

9.  The applicant signed her request for discharge which showed that she was making the request of her own free will and had not been subjected to any coercion whatsoever by any person, that she acknowledged guilt to the offenses charged, that she was afforded the opportunity to consult with counsel, that she was advised she may be discharged under other than honorable conditions, that she may be deprived of many or all Army benefits, that she may be ineligible for many or all benefits administered by the VA, that she may be deprived of her rights and benefits as a veteran under both Federal and State law, and that she may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  The applicant’s request also shows she was advised that she may submit any statements she desired in her own behalf which would accompany her request for discharge.  The applicant elected not to submit any statements in her own behalf and also declined the option to undergo a separation medical examination.  The applicant’s request for discharge further shows she was provided counsel by Captain Francene L. B____, Defense Counsel, Judge Advocate General Corps.

10.  On 1 December 1989, the Commander, Personnel Control Facility, Headquarters Command, USAFACFS, Fort Sill, Oklahoma, recommended approval of the applicant’s request for discharge from the U.S. Army under the provisions of chapter 10 of Army Regulation 635-200.  He stated the applicant was charged with two periods of AWOL totaling 227 days and that she was apprehended by civilian authorities.  He also indicated the applicant had gone AWOL for personal reasons, had become disillusioned with the military, and her retention in military service was not in the best interest of the Army.  The commander concluded by recommending discharge of the applicant under other than honorable conditions.

11.  On 8 December 1989, the Commander, Headquarters Command, USAFACFS, Fort Sill, Oklahoma, approved the applicant’s request for discharge pursuant to chapter 10 of Army Regulation 635-200 with a discharge under other than honorable conditions.  The commander also directed the immediate reduction of the applicant to the lowest enlisted grade.

12.  The applicant's military personnel records contain a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows she entered this period of active duty on 6 September 1988 and was discharged on 10 January 1990 with a character of service of under other than honorable conditions in accordance with the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of court-martial with the separation code "KFS."  This document also shows that at the time of her discharge the applicant had completed 8 months and 23 days of net active service.  The DD Form 214 shows that the applicant had time lost under Title 10, U.S. Code, section 972, from 13 March 1989 through 10 April 1989 and from 26 April 1989 through 9 November 1989.

13.  The applicant's military personnel records are absent any evidence related to sexual abuse, sexual harassment or unfair treatment of the applicant.

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

15.  There is no evidence the applicant applied to the Army Discharge Review Board for upgrade of her discharge within its 15-year statute of limitations.

16.  In support of her application, the applicant provides a VA, Attachment A, that provides her and her family members’ personal information.

17.  Army Regulation 635-200, in effect at the time of the applicant's separation from active duty, prescribed policies and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.  Chapter 10 of this Army Regulation provides that a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service.

18.  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.

19.  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.

20.  Army Regulation 635-200, paragraph 3-7c, provides that a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of the service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that her discharge should be upgraded to an honorable discharge because she suffered sexual abuse/harassment and unfair treatment from peers of the perpetrators during her military service.

2.  The evidence of record shows that the applicant elected not to undergo a medical examination at the time of her separation processing.  In this regard, there is no medical evidence of record that shows the applicant was sexually abused.

3.  There is no evidence of record, and the applicant provides insufficient evidence, to show that she was sexually abused, sexually harassed or treated unfairly by military or government officials during her military service.  It is noted 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 unfair treatment, sexual harassment or sexual abuse to this female officer at the time she was being offered legal counsel on her discharge.  Moreover, the applicant elected not to submit any statement on her own behalf regarding such matters.

4.  The evidence of record shows that the applicant requested a discharge for the good of the service in lieu of trial by court-martial and the appropriate separation authority approved the applicant’s request for discharge.  The evidence of record also shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  Lacking evidence to the contrary, it is determined that all requirements of law and regulations were met, the rights of the applicant were fully protected throughout the separation process, and the appropriate discharge certificate was furnished.

5.  The evidence of record shows that the applicant was AWOL from 13 March 1989 through 10 April 1989 and from 26 April 1989 through 9 November 1989 for a total of 227 days (i.e., more than 7 months) AWOL during the period of service under review.  In addition, the evidence of record shows the applicant only completed approximately 9 months of her 3-year enlistment commitment.  Thus, the evidence of record shows that the applicant’s record of service during the period of service under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and she is not entitled to an honorable discharge.  Moreover, the evidence of record clearly shows that the applicant's overall quality of service during the period of service under review was not satisfactory.  Therefore, the applicant is not entitled to a general discharge under honorable conditions.

6.  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:

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.




      _______ _   _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)                                         AR20080017927



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ABCMR Record of Proceedings (cont)                                         AR20080017927



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