IN THE CASE OF:	  

		BOARD DATE:	        07 MAY 2009

		DOCKET NUMBER:  AR20090001868 


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 discharge under other than honorable conditions be upgraded to a general discharge. 

2.  The applicant states that she was 18 years of age when she went into the Army and that she was raped while in basic training by another Soldier in another unit.  She goes on to state that she was told that she was ruining a fine man's career by the Judge Advocate General (JAG) officers.  She goes on to state that she was under duress of violence when she was made to sign a statement indicating that she had signed a false report.  She continues by stating that she was prosecuted without pay for 3 months as punishment.  She further states that the other Soldier's commander threatened her life if she did not stop proclaiming her innocence, so she went absent without leave (AWOL) to survive.  She also states that a year later she turned herself in at Fort Ord, California and 2 weeks later she found her bunk outside in a rain storm.  She states that she approached the commander and he laughed and told her to toughen up.  After 2 1/2 hours in the rain, another officer came by and took her off-post and paid for her ride home.  She continues by stating that 8 years later she served her time at Fort Ord and was discharged.  At the time of her discharge, the sergeant major asked her to reenlist to be his secretary; however, she had medical issues at the time and could not.  She has since become an ordained "Pentecostal" minister. 

3.  The applicant provides a two-page handwritten statement explaining 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 was born on 8 May 1962 and enlisted in the Regular Army on 18 June 1980 for a period of 3 years, training as an administrative specialist and assignment to Fort Sill, Oklahoma.  She was transferred to Fort Jackson, South Carolina to undergo her training.

3.  On 8 September 1980, nonjudicial punishment was imposed against the applicant for making a false official statement to the effect that another Soldier had forces her to have sexual intercourse with him, which she knew not to be true.  Her punishment consisted of a forfeiture of $224.00 pay per month for 2 months and correctional custody for 30 days.  The applicant appealed her punishment and her appeal was denied on 11 September 1980.

4.  On 16 September 1980, the applicant went AWOL and remained absent in desertion until she surrendered to military authorities at Fort Ord on 4 November 1980.

5.  She again went AWOL on 10 November 1980 and remained absent in desertion until she was apprehended by civil authorities and was returned to military control at Fort Ord on 1 December 1987, where charges were preferred against her.

6.  The facts and circumstances surrounding the applicant's administrative discharge are not present in the available records, as they were loaned to the Veterans Administration (VA) [now known as the Department of Veterans Affairs] in San Diego, California on 2 June 1995.  However, her records do contain a duly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) which shows that she was discharged under other than honorable conditions on 


29 April 1988, under the provisions of Army Regulation 635-200 (Personnel 
Separations – Enlisted Separations), chapter 10, in lieu of trial by court-martial.  She had served 8 months and 2 days of active service and had 2,626 days of lost time due to AWOL.

7.  There is no evidence in the available records to show that the applicant ever applied to the Army Discharge Review Board for an upgrade of her discharge within that board's 15-year statute of limitations.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A condition of submitting such a request is that the individual concerned must indicate that they are submitting the request of their own free will, without coercion from anyone and that they have been briefed and understand the consequences of such a request as well as the discharge they might receive.  A discharge under other than honorable conditions was then and still is normally considered appropriate.

9.  Paragraph 3-7a of Army Regulation 635-200 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.  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.  In the absence of evidence to the contrary, it must be presumed that the applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by courts-martial, was administratively correct and in conformance with applicable regulations, with no violations of any of the applicant's rights.

2.  Accordingly, the type of discharge directed and the reasons therefore appear to be appropriate under the circumstances.  

3.  After being afforded the opportunity to assert her innocence before a trial by court-martial, she chose to voluntarily request a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on her records.  

4.  The applicant's contentions have been considered; however, they are not supported by the evidence of record and are not sufficiently mitigating to warrant relief when compared to her undistinguished record of service in such a short period of time.  Accordingly, her service simply does not rise to the level of even a general discharge.

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.



      _________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)                                         AR20090001868



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ABCMR Record of Proceedings (cont)                                         AR20090001868



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