IN THE CASE OF:	  

		BOARD DATE:	 9 June 2009 

		DOCKET NUMBER:  AR20090001018 


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 that her general discharge be upgraded to honorable. 

2.  The applicant states that she is being treated by the Department of Veterans Affairs (VA) for post-traumatic stress disorder (PTSD), sexual trauma, and other emotional problems.  The general discharge should be changed to honorable because thoughts of the general discharge trigger psychological responses cased by memories of a time when she had no control over her life.  She was harassed at work by a sergeant because she would not go out with him.  He punished her for not going out with him by giving her several nonjudicial punishments (NJP) under the provisions of Article 15, Uniform Code of Military Justice.  When she finally realized that she could not make him stop, she appealed to the colonel to get out of the Army.  However, the colonel only saw all those NJPs and thought she was a big loser.  An honorable discharge would improve her self-esteem and help with her emotional problems.

3.  The applicant provides, in support of her application, her own description of her problems in the service. 

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 and entered active duty on 20 June 1977.  She completed training as a cook and was stationed at Fort Bliss, Texas, in October 1977.  She accumulated three NJPs and the vacation of a suspended punishment for failures to go to her appointed place of duty.  She also received several counseling statements about repeated tardiness.

3.  A mental status evaluation on 11 April 1979 found the applicant's behavior normal.  She was fully alert and oriented and displayed an unremarkable mood.  Her thinking was clear, her thought content normal, and her memory good.  There was no significant mental illness.  The applicant was mentally responsible. 
She was able to distinguish right from wrong and to adhere to the right.  An associated clinical abstract noted that there was no evidence of any psychiatric disorder although she did display an immature attitude.  There was no mention of any reported sexual harassment.

4.  On 29 April 1979, the applicant was recommended for separation with a general discharge under the Expeditious Discharge Program (EDP).  The applicant acknowledged the notification and that she had been provided an opportunity to consult with counsel.  She submitted two letters of appreciation as her statement in her own behalf.

5.  The recommendation for separation was supported by signed statements from five different noncommissioned officers and two officers all of whom reported that she could not be depended upon to show up as scheduled/directed.

6.  On 22 May 1979, the separation authority directed that the applicant be separated with a general discharge under the EDP.

7.  On 25 May 1979, the applicant was discharge, with a general under honorable conditions discharge, under the provisions of Army Regulation 635-200, chapter 5, (EDP), after completing 1 year, 11 months, and 6 days of creditable active service.

8.  Army Regulation 635-200 (Personnel Separations) provides the policy and sets forth the procedure for administrative separation of enlisted personnel.  Chapter 5, then in effect, provided, in pertinent part, for the EDP.  This program provided that an individual who had completed at least 6 months, but less than 36 months, of active duty and who demonstrated (by poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally or failure to demonstrate promotion potential) that he or she could not or would not meet acceptable standards could be separated.  Such personnel were issued a general or honorable discharge, as appropriate, except that a recommendation for a general discharge had to be initiated by the immediate commander and the individual had to consult with legal counsel.

9.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

10.  There is no indication that the applicant applied to the Army Discharge Review Board during the 15-year period of eligibility.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states that an upgrade would lessen the effects of the PTSD that resulted from sexual harassment.

2.  There is no evidence of record to substantiate the applicant's contention that her behavior was the result of sexual harassment.

3.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military service.

4.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

5.  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)                                         AR20090001018



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ABCMR Record of Proceedings (cont)                                         AR20090001018



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