IN THE CASE OF:	  

		BOARD DATE:	    2 February 2010

		DOCKET NUMBER:  AR20090008665 


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 under honorable conditions discharge be upgraded to fully honorable.

2.  The applicant states that an overt injustice was committed which resulted in her general under honorable conditions discharge for commission of a serious offense as indicated on her DD Form 214 (Certificate of Release or Discharge from Active Duty).  As a result, she was reduced from sergeant (promotable)/pay grade E-5 to private/pay grade E-1.  She refers to statements made by the trial counsel, military judge, and a witness during her court-martial hearing.  She emphasizes that her characterization of service is inequitable, improper, and unjust.  Despite her exemplary record, she alleges that individuals within her chain of command decided to discredit her within less than 2 weeks of her eligible date for return from overseas.  She also alleges she was harassed daily and additional frivolous charges were added until she was court-martialed.  She was informed that she could not have her case reviewed unless she agreed to be discharged; she was not discharged by court-marital.  The applicant continues by stating she received an honorable discharge from 8 April 1982 to 19 December 1985.  Subsequently, she made the Commander's List, was the Leadership Award recipient at Fort Dix, NJ, scored maximum points on most all of her fitness tests, and her enlisted evaluation reports (EER) indicated she was an outstanding noncommissioned officer until February 1988.  She alleges she had one isolated mischaracterized incident in over 5 years of service with no other adverse action.  She quoted several statements made by the military judge, direct examinations, cross examinations, and redirect examinations in the transcript.

3.  The applicant provides the following documents in support of her application:

* DD Form 214 for the period ending 16 December 1988;
* supplemental letter, dated 13 May 2009;
* 17-page addendum to online application, dated 10 May 2009;
* Congressional letters, dated 13 December 1988 and 15 December 1988;
* summary of findings from the Office of the Inspector General inquiry;
* memorandum from defense counsel, dated 2 November 1988;
* letter from Office of the Clerk of Court, dated 9 November 1989;
* Certification of Military Service, dated 22 March 2005;
* DA Form 1059 (Service School Academic Evaluation Report), dated 20 June 1986;
* Primary Leadership Development Course diploma, dated 20 June 1986;
* EER for the period ending February 1988;
* memorandum from Assistant Adjutant General, 2d Infantry Division; dated 31 March 1988;
* DA Form 3499 (Application for Relief from Court-Martial Findings and/or Sentence under the Provisions of Title 10, U.S. Code, Section 869);
* DA Form 4856 (General Counseling Form);
* DA Form 2496 (Disposition Form), dated 24 May 1988;
* statement from executive officer;
* Eighth Army Form 165-R (Equal Opportunity Complaint), dated 9 May 1988;
* DA Form 458 (Charge Sheet), dated 12 May 1988;
* DA Form 2496, dated 11 April 1988, and DA Form 2823 (Sworn Statement), dated 27 May 1988; and
* Eighth Army Form 329-1 (Personnel Services and Administration Form).

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 on 1 October 1982 and was honorably discharged on 19 December 1985 for immediate reenlistment.  She reenlisted on 20 December 1985.  Her highest grade attained was sergeant/pay grade E-5.

3.  The applicant's DA Form 1059 shows she completed the Primary Leadership Development Course, Class 7-86, on 20 June 1986.  Block 16 (Comments) of this report stated the applicant had exceeded the course standards by being selected as the Leadership Award recipient.  This report also stated she was placed on the Commandant's List, displayed exceptional qualities of leadership, and was highly motivated throughout the course.

4.  She was assigned to Headquarters and Headquarters Battery, 2d Infantry Division Artillery, in Korea in June 1987.

5.  The applicant received a change-of-rater EER for the period May 1987 through February 1988 which shows she was given a rating of "125" based on a maximum total of 125 points per report.

6.  She departed Korea in August 1988 and was reassigned to the U.S. Army Correctional Activity at Fort Riley, KS.

7.  On 30 August 1988, the applicant was convicted contrary to her pleas by a special court-martial of the following offenses:  showing disrespect to a superior noncommissioned officer on 8 April 1988, failure to obey a lawful order on 27 April 1988, and three specifications of disobeying a superior commissioned officer.  She was sentenced to be reduced to the grade of private, E-1 and confinement for 4 months.

8.  On an unknown date, the unit commander notified the applicant of separation action under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12c, for misconduct (commission of a serious offense).  She was advised of her rights.

9.  On 10 November 1988, the applicant acknowledged notification of separation action, consulted with legal counsel, voluntarily waived consideration of her case by an administrative separation board contingent upon her receiving a characterization of service no less favorable than honorable, and submitted statements in her own behalf.

10.  In her statements, the applicant expressed her desire not to remain in the service.  She described herself as a top-notch Soldier her entire 6 years of service, always meeting the challenge, successfully accomplishing all missions, and exceeding the standards.  She stated she continued to make a stand and the injustices became her motivation and a strong desire for justice.  She hoped her stand for justice would inspire others to make a stand.  She continued to state that the military had no place for people like her, striving for excellence, as evident by the loss of many good Soldiers with the same desire.

11.  On unknown date, the separation authority directed that the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct (commission of a serious offense) with the issuance of a General Discharge Certificate.

12.  In a 13 December 1988 letter, the Inspector General responded to a Senator regarding the applicant's 20 allegations.  Of the allegations presented, it was found that 14 were not substantiated, two were neither substantiated nor refuted, two were substantiated, one was substantiated but without impropriety, and one was partially substantiated and partially neither substantiated nor refuted.  The letter cited the applicant's conviction by a special court-martial and indicated she was discharged from the Army with bad conduct discharge on 13 December 1988.

13.  On 16 December 1988, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c.  At the time of her discharge, she had completed a total of 5 years, 11 months, and 1 day of creditable active service with 105 days of lost time due to confinement.

14.  The applicant provided a 17-page addendum to her application.  She referenced a letter, dated 15 December 1988, from Senator M____.  The applicant mentioned that her troubles with the military justice system only began after she blew the whistle in an Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation into a number of improprieties within her chain of command, including black marketing, falsification of documents for promotions, theft of government leaves, and misappropriation of governmental funds.  Overall, she referenced several testimonies from her court-martial hearing, the 20 allegations in the summary of findings, dated 13 December 1988, and the charges and specifications in her special court-martial.

15.  There is no indication that the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribed procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

17.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully reviewed.  However, there is insufficient evidence on which to substantiate the applicant's claims.

2.  The applicant's service record shows she was convicted by a special court-martial of showing disrespect to a superior noncommissioned officer, failure to obey a lawful order, and three specifications of disobeying a superior commissioned officer.

3.  It appears the separation authority determined that the applicant's overall service did not meet the standards of acceptable conduct and performance of duty to warrant recommendation of an honorable discharge and appropriately characterized her service as general under honorable conditions.

4.  After review of the evidence of this case, it is determined that the applicant has not presented sufficient evidence which warrants changing her general under honorable conditions discharge to fully honorable.



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.



      _________________________
                 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)                                         AR20090008665



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ABCMR Record of Proceedings (cont)                                         AR20090008665



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