IN THE CASE OF:	  

		BOARD DATE: 	        4 June 2009 

		DOCKET NUMBER:  AR20090003218 


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 9 February 1983 under other than honorable conditions (UOTHC) discharge be upgraded.

2.  The applicant states, in effect, the discharge is not consistent with current standards and practices of today's Army.  She was raped early on in her first period of service and, since she did not receive any counseling or assistance related to that incident, she started abusing drugs and has been in and out of jail and prisons.  She reenlisted under her sister's name because she wanted to face her fears, but she was sick with hyperthyroidism, diabetes, hypertension, and hepatitis C and should have received a medical discharge.

3.  The applicant provides copies of some of her 2007-2008 Department of Veterans Affairs (VA) medical treatment and progress reports and a personal recounting of her alleged rape and subsequent problems.

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 service medical and dental records are believed to be on permanent loan to the VA and are not available for review.

3.  The applicant enlisted in the Women's Army Corps on 24 July 1970, completed training, and was awarded the military occupational specialty 71B (Clerk Typist).

4.  During this period of service the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), as follows;

	a.  on 18 January 1971, for theft of $80.00 from another Soldier;

	b.  on 9 February 1971, for absenting herself from her place of duty;

	c.  on 8 March 1971, for failure to obey a lawful order on three occasions;

	d.  on 2 April 1971, for disrespect and insubordination toward a senior noncommissioned officer (NCO);

	e.  on 5 May 1971, for disrespect toward a commissioned officer; and
 
	f.  on 7 October 1971, for uttering provoking language and gestures toward a specialist five.

5.  On 27 September 1971, the applicant's supervisor gave her an unsatisfactory rating due to her repeated disrespectful attitude toward the supervisor, her fellow workers, and customers.  During a 6-week period the applicant had only performed 1 full day and 3 half days of work.

6.  It is reported that the applicant failed to go to her appointed place of duty on 7, 8, and 14 October 1971.  The record does not show what, if any, punitive actions were taken.

7.  On 20 October 1971, the applicant's unit commander initiated separation proceedings under Army Regulation 635-212 (Personnel Separations discharge Unfitness and Unsuitability) for unsuitability.

8.  On 21 October 1971, the applicant acknowledged her rights and waived her rights to a board of officers, to have counsel, and to submit a statement on her own behalf.

9.  The discharge authority approved the separation action and directed the applicant be discharged with a general discharge.

10.  The applicant was discharged on 27 October 1971 with 1 year, 3 months, and 4 days of creditable service.

11.  On 5 September 1988, "D____ B____" enlisted in the Army Reserve Delayed Entry Program.  She entered active duty on 5 September 1980.  During a subsequent investigation by the Naval Criminal Investigative Service (NCIS) it was proven that the applicant enlisted under her sister's name and social security number (SSN).  This fact was supported by the Federal Bureau of Investigation review of fingerprints for the applicant and her sister.

12.  The record contains documentation that during this second period of service the applicant received NJP as follows:

	a.  on 5 June 1981, for shoplifting;

	b.  on 20 September 1982, for disobeying a direct order from an NCO; and

	c.  on 25 September 1982, for failure to go to her appointed place of duty.

13.  The record contains several DA Forms 2823 (Sworn Statements) wherein the applicant was reported to have been the instigator of several disturbances in addition to the assault charges listed below.

14.  On 25 December 1982, the applicant was arrested by military police for assault on her commander and her first sergeant.

15.  Court-martial charges were preferred for assault on a commissioned officer with bodily injury, assault on an NCO, assault on a specialist, disrespectful language toward an NCO, and being drunk and disorderly.

16.  On 24 January 1983, after consulting with counsel and being advised of her rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 10.  She acknowledged she had been advised of and understood her rights under the UCMJ, that she could receive a UOTHC discharge which would deprive her of many or all of her benefits as a veteran, that she could expect to experience substantial prejudice in civilian life if she received a UOTHC discharge, and that there is no automatic upgrading or review of a less than honorable discharge.

17.  The discharge authority approved the separation, directed she be reduced to the lowest enlisted grade, and separated with an UOTHC discharge.

18.  The record indicates the applicant was discharged UOTHC on 9 February 1983.  She had 2 years, 2 months, and 28 days of creditable service during this period.

19.  On 13 November 1991, following an NCIS investigation, the applicant's discharge documents were corrected to reflect her name as "R____ B____" and correct her SSN.

20.  The VA records provided by the applicant show she was evaluated for poly-drug abuse (in remission), alcoholism, hypertension, high cholesterol, a positive tuberculin screening, hypothyroidism, hepatitis C and post-traumatic stress disorder (PTSD).  The majority of the records relate to her preparation for an in-hospital sexual trauma treatment program.  The records do not include any documentation from the in-hospital program.

21.  Army Regulation 635-200 sets forth the policies and procedures for enlisted personnel separations.  Chapter 3, in effect at that time, outlines the criteria for characterization of service.  Paragraph 3-7a states that an honorable discharge is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty.  Paragraph 3-7a(1) in pertinent part states, "A Soldier will not necessarily be denied an honorable discharge solely by reason of a specific number of convictions by court-martial or actions under the UCMJ Article 15…It is a pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service."  Paragraph 3-7b state that a general discharge is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge.  Paragraph 3-7c states that a UOTHC discharge is issued when there is one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier.  Paragraph 3-7c(7) specifically addresses issuance of a UOTHC for discharges issued under the provisions of chapter 10 of this regulation.

22.  Chapter 10 of Army Regulation 635-200 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 the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

23.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for assault consummated by a battery.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states, in effect, her discharge is not consistent with current standards and practices of today's Army.  She reenlisted under her sister's name because she wanted to face her fears, but she was sick with hyperthyroidism, diabetes, hypertension, and hepatitis C and should have received a medical discharge.

2.  While the rape scenario the applicant describes is plausible, the applicant has not provided nor does the record contain any documentation to support her statements.

3.  Her second period of active duty began with her fraudulent entry.  She lied about who she was to enter active duty and the same pattern of misbehavior she exhibited during her first period of service continued during the second period.  It culminated in her physical assaults of her commander, first sergeant, and another Soldier.

4.  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 court-martial was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

5.  The applicant has provided insufficient evidence to validate her contention that she was raped on active duty or that this incident was the cause of her misbehavior during either period of active duty.

6.  In the absence of evidence that the applicant was so impaired by mental, emotional, psychological, or psychiatric problems as to be unable to tell right from wrong and adhere to the right at the time of her discharge or of the behavior that led to either of her discharges, the current unsupported diagnosis of PTSD does nothing to demonstrate an injustice in the discharge.

7.  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)                                         AR20090003218



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090003218



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1