IN THE CASE OF:	  

		BOARD DATE:	  7 April 2009

		DOCKET NUMBER:  AR20080018685 


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, reconsideration of her earlier petition to upgrade the general, under honorable conditions discharge (GD) she received to an honorable discharge (HD).

2.  The applicant states, in effect, that she is greatly disappointed in the information presented in the Record of Proceedings (ROP) produced by the Army Board for Correction of Military Records (ABCMR) in her case.  She claims that it is apparent the Board did not consider the information she provided and she is more than willing to present her case to the Board in person. 

3.  The applicant provides a self-authored letter as new argument in support of his reconsideration request.  

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080009046, on 30 September 2008.  

2.  During its original review of the case, the Board determined the applicant's separation processing was accomplished in accordance with the applicable regulation with no indication of procedural errors which would tend to jeopardize 

the applicant's rights.  It further indicated that the applicant's contentions were noted but that there was no evidence submitted by the applicant or evidence of record showing actions taken in her case were in error or unjust.  The Board finally concluded the applicant's record was not sufficiently meritorious to support an HD, and as a result it denied the applicant's request.  

3.  The applicant submits a self-authored letter as new argument in support of her reconsideration request.  She reasserts, as she did in her original application, that she suffered from a mental illness at the time of her discharge processing, which is defined as code 302.85 (Gender Identity Disorder-adolescent or adult) in the Diagnostic and Statistical Manual (DSM) of Mental Disorders IV, and this was the primary contributing factor for the misconduct that led to her discharge.  She states this is a lifetime issue and is the issue that would have been presented in the court at the time of her Special Court-Martial (SPCM) had it not been disallowed.  She also states that the Board's comment that she did not suffer from sexual abuse by a noncommissioned officer (NCO) in Germany had to be made by a person who lacks understanding of sexual abuse.  She states it is not uncommon for sexual abuse victims not to report the abuse and not to seek help from others because they suffer from low self-esteem and often believe the abuse is their fault.  She claims she repressed the memory.  She further states that a first lieutenant (1LT), whose objective was to punish her, set her up to receive an Article 15 and the Board failed to opine on this matter.

4.  The applicant also provides her narrative comments on each item of the Consideration of Evidence (COE) portion of the ROP published by the Board after its original review of the case.  In addition, she provides a self-authored letter, dated 20 June 1977, in which she outlined personal problems that contributed to the acts that led to her discharge and post-service employment information, which she claims clearly shows she suffered from a chronic personality disorder.  She finally argues that the Board reached its conclusion without proper consideration of her situation and outlines various reasons for this belief.  

5.  As a matter of information and clarity, the applicant may be referred to as "he or him" in the remaining COE portion of this ROP because military service was performed under the male gender.  This is not a comment on the applicant's life changes subsequent to military service, but rather an accurate representation of the facts that existed during military service. 

6.  The applicant's record shows that he initially enlisted in the Regular Army (RA) for 3 years on 3 July 1962, and that he reenlisted for 3 years and began the enlistment under review on 20 June 1964.  The enlistment records (DD Forms 4) 
for both enlistments confirm his sex/gender was male.  He was trained in and awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman) on 18 November 1962.  

7.  The applicant's DA Form 20 (Enlisted Qualification Record) shows that he was promoted to specialist four (SP4)/E-4 on 12 June 1964, and that this is the highest rank he attained while serving on active duty.  It further shows that during his active duty tenure, he earned the Parachutist Badge, National Defense Service Medal, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  His record documents no acts of valor, significant achievement, or service warranting special recognition.  

8.  The applicant's disciplinary history includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on five separate occasions between 2 August 1963 and 
24 February 1967, and his conviction by an SPCM on 14 December 1966.

9.  The applicant's unit commander recommended he be separated under the provisions of Army Regulation 635-212 (Personnel Separations – Discharges – Unfitness and Unsuitability), by reason of unfitness and cited the applicant's extensive disciplinary history as the basis for taking the action.

10.  On 8 March 1967, in conjunction with his separation processing, the applicant underwent a psychiatric evaluation by the 82nd Airborne Division Psychiatrist.  The examining psychiatrist diagnosed the applicant with a chronic personality disorder characterized by poor judgment, asocial behavior, difficulty with authority, inability to profit from experience, and no motivation to change his pattern of living.  The psychiatrist further confirmed the applicant met medical retention standards and was mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board (separation) proceedings.  The psychiatrist recommended the applicant be separated under the provisions of Army Regulation 635-212.  

11.  The applicant's record is void of any medical treatment records or other documentary evidence that indicates the character and behavior disorder diagnosis was disqualifying or supported the applicant's separation processing through medical channels, or that he suffered from any other disabling mental or physical condition at the time of his discharge.  

12.  On 8 March 1967, the applicant also consulted with legal counsel and was advised of the basis for the contemplated separation and its effects, and of the rights available to him.  Subsequent to this counseling, the applicant waived his 
right to consideration of his case by a board of officers, personal appearance before a board of officers, and to counsel.  He also elected not to submit a statement in his own behalf.  

13.  On 16 March 1967, the unit commander submitted his discharge recommendation and stated that during the period since 25 November 1965, the applicant had been assigned to three different companies within the brigade and served under several different officers and noncommissioned officers and in each instance, his performance of duty was unsatisfactory.  The unit commander further indicated that despite frequent counseling and other efforts toward rehabilitation, the applicant had repeatedly shirked his duties and been involved in petty offenses disruptive to the mission of his unit.  

14.  On 23 March 1967, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-212, by reason of unfitness (frequent incidents of a discreditable nature with civil or military authorities) and directed the applicant receive an undesirable discharge (UD).   Accordingly, the applicant was discharged on 11 April 1967.

15.  On 11 April 1977, the Army Discharge Review Board (ADRB) voted to upgrade the applicant's UD to a GD under the provisions of the Department of Defense (DOD) Special Discharge Review Program (SDRP); and on 30 May 1978, the ADRB affirmed this GD upgrade action under the provisions of 
Public Law 95-126.  

16.  Army Regulation 635-212, in effect at the time, provided the authority for the separation of enlisted personnel.  Paragraph 6a(1) provided the policy for separating members involved in frequent incidents of discreditably nature with civil or military authorities.  An UD was normally considered appropriate for members separated under this provision of the regulation.

17.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, sets forth the basic authority for the separation of enlisted personnel.  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 40-501 (Standards of Medical Fitness), paragraph 3-35 of the regulation currently in effect, states that personality disorders, transsexual, or gender identity disorders render an individual administratively unfit rather than unfit because of physical illness or medical disability.  The regulation in effect at the time did not mention transsexual or gender identity disorders.

19.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-11 
contains guidance on hearings.  It states, in pertinent part, that applicants do not have a right to a hearing before the ABCMR.  The Director of the ABCMR or the Board may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that all the facts and circumstances surrounding her case were not considered by the Board during its original review was carefully considered.  However, the record shows that all issues raised and documents submitted by the applicant were considered during the original review of the case.

2.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the applicant's rights were fully protected throughout the separation process.  It further shows that the applicant's initial 
UD was supported by her extensive record of misconduct and accurately reflected her overall record of service.  

3.  The applicant's claim that she suffered from a mental condition that resulted in the acts of misconduct that led to her discharge was also considered.  However, other than a diagnosed personality disorder, which did not disqualify her from further service or support her separation processing through medical channels, there are no medical treatment records on file or provided by the applicant that corroborate her claim that a disabling medical/mental condition was the sole contributing factor for her misconduct.  In addition, in accordance with the current governing regulation and the governing regulation at the time neither a personality disorder nor a gender identity disorder that would have rendered her eligible for medical processing.  Further, an examining psychiatrist found her to be mentally responsible and able to distinguish right from wrong and to adhere to the right.


4.  Further, the evidence of record and independent evidence submitted by the applicant also fails to corroborate her claim that she was sexually abused by an NCO in Germany.  Although this could have happened, absent any documentary evidence supporting this assertion, there is an insufficient evidentiary basis to support a recommendation for relief based on the allegation alone.  

5.  By regulation, applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.  In this case, it is concluded that the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, it is concluded that a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

6.  Although it is clear the applicant is dissatisfied with the prior decision of the Board and believes her discharge was unjust, this factor alone does not support an upgrade of her discharge.  

7.  Further, the fact that there was no evidence of record or independent evidence provided that supports the applicant's allegations of mental illness and 
sexual abuse, does not support granting a formal hearing in this case.  In this case, there are more than sufficient records and documentary evidence to allow the Board to render a fair and impartial decision on the case.  Finally, the evidence of record confirms the applicant's misconduct clearly diminished the overall quality of her record below that meriting a fully honorable discharge and absent any evidence of error or injustice, it is concluded there is an insufficient evidentiary basis to support an upgrade of her discharge at this time.

8.  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 or that would support amendment of the original decision 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 to amend the decision of the ABCMR set forth in Docket Number AR20080009046, dated 30 September 2008.



      __________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)                                         AR20080018685



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080018685


2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1