IN THE CASE OF:	  

		BOARD DATE:	        23 April 2009
		DOCKET NUMBER:  AR20080017970 


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 under other than honorable conditions (UOTHC) discharge under the provisions Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, be upgraded to general under honorable conditions and that the reason for separation be changed to chapter 11 for entry level separation.

2.  The applicant states that she was mistreated, abused and sexually harassed. Drill Sergeant G____ would come into her room without knocking or announcing himself.  He made her strip the floor and re-wax it on three occasions.  He made her do physical training (PT) while she was on profile.  She thinks he did these things because she rebuffed his advances.  When she inquired of Drill Sergeant M____ as to how she could get out of this situation, she was advised to be absent without leave (AWOL) for 30 days.  She was told she would receive a chapter 11 discharge.  The next thing she knew she was getting a chapter 10.  She did not know anything about this and she was not being court-martialed.  She believes that this was done by Lieutenant Colonel B______ to cover-up for his cadre.  She did go AWOL, but she did so because it was the only way to escape an intolerable situation.  She would like to enlist and serve her country again.  

3.  The applicant provides no additional documentation in support of her request. 




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 enlisted in the Regular Army for 4 years and entered active duty on 15 October 2002.  

3.  She completed basic training but during advanced individual training she was AWOL from 16 March 2003 until her surrender on 16 April 2003.  

4.  When charges for that offense were preferred under the Uniform Code of Military Justice, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to her.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  

5.  In her request for discharge under the provisions of Army Regulation 635-200, chapter 10, she indicated that she understood that by requesting discharge she was admitting guilt to the charge against her or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  She further acknowledged she understood that if her 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 she could be deprived of her rights and benefits as a veteran under both Federal and State laws.
  
6.  The battery commander recommended approval of the applicant's request and issuance of an UOTHC discharge.  The applicant was subsequently placed on voluntary excess leave status on 25 April 2003 pending disposition of her 

request for discharge.  The discharge authority approved her request for discharge and directed that the applicant be reduced to pay grade E-1 and separated with an UOTHC discharge.  On 23 July 2003, the applicant was duly separated with an UOTHC discharge.  She had 8 months and 9 days of creditable active service and 31 days of time lost due to AWOL.

7.  On 8 December 2004, the Army Discharge Review Board (ADRB) denied the applicant's request to upgrade her discharge.

8.  Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted
Administrative Separations) 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.

9.  Army Regulation 635-200, chapter 11, establishes policy and prescribes procedures for separating members because of unsatisfactory performance or conduct (or both) while in an entry level status.  It states, in pertinent part, that separation under this chapter applies to Soldiers who are in an entry level status and, before the date of the initiation of separation action, have completed no more than 180 days of continuous active duty and have demonstrated that they cannot or will not adapt socially or emotionally to military life.  It further states that the character of service for members separated under the provisions of this chapter will be uncharacterized.

10.  The Manual for Courts-Martial (MCM), Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  It states, in pertinent part, that a punitive discharge is authorized for any AWOL in excess of 30 days.

11.  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 she was mistreated, abused, and sexually harassed.  She states she did go AWOL, but she did so because it was the only way to escape an intolerable situation.  She further states she would like to enlist to serve her country again.

2.  The applicant's contentions have been noted; however, there is no evidence of record and the applicant provided no evidence to support her contentions. 

3.  Her voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the applicant's request was made under coercion or duress.

4.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize her rights.

5.  Entry level separation under Army Regulation 635-200, chapter 11 is not appropriate in this case.  The applicant committed an offense that in a trial by court-martial could have resulted in a punitive discharge.  She voluntarily requested discharge in lieu of trial for that offense.  Therefore, the type of discharge directed and the reasons therefore were appropriate considering all the facts of the 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.



      _________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)                                         AR20080017970



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ABCMR Record of Proceedings (cont)                                         AR20080017970



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