BOARD DATE:	  17 December 2009

		DOCKET NUMBER:  AR20090010353


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, change of her uncharacterized discharge to an honorable discharge.

2.  The applicant states, in effect, she was sexually harassed during her military service; she was told her uncharacterized discharge would be changed to fully honorable in 3 months; and she is interning in a government position and needs to have her discharge changed.

3.  The applicant provides no additional documentation in support of her request.

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 (RA) for 3 years and training as a motor transport operator.  She was 18 years old at the time of enlistment.

3.  Following training at Fort Leonard Wood, MO, the applicant was transferred to Fort Devens, MA and assigned to the 104th Transportation Company as a motor transport operator.  She arrived at her unit on/or about 28 September 1992.

4.  Almost immediately upon her arrival at Fort Devens, the applicant was cited for having an apathetic attitude.  She told her superiors on 9 November 1992 that she did not feel she could adapt to the military lifestyle.  She was counseled by her squad leader, platoon sergeant, first sergeant, and company commander.  Her chain of command made appointments for her with the retention NCO (noncommissioned officer) and the chaplain.  She continued to maintain that she did not desire to stay in the Army.

5.  The applicant was seen by a Community Mental Health Service official on 30 November 1992.  She was found to be competent, mentally responsible, and able to meet retention requirements.  She was given no diagnosis, but she was found to be "apathetic, immature, and unmotivated to become a productive Soldier."  She was psychiatrically cleared for administrative separation.

6.  On 1 December 1992, the applicant's commander notified her that she would be processed for discharge under the provisions of Army Regulation 635-200, chapter 11, for entry level status performance and conduct.  She was informed that she was being recommended for an uncharacterized separation.  On 9 December 1992, the applicant acknowledged notification after consulting with legal counsel.

7.  On 15 December 1992, the approving authority waived any further rehabilitative measures and directed the applicant be separated for entry level status performance and conduct with an uncharacterized separation.

8.  On 21 December 1992, the applicant was discharged.  Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she completed 
6 months and 20 days of her 3-year enlistment.  The separation authority was Army Regulation 635-200, paragraph 11-3a, and her separation code and reentry code were "JGA" and "RE-3," respectively.  Her character of service was "uncharacterized."

9.  There is no evidence the applicant petitioned the Army Discharge Review Board (ADRB) seeking an upgrade of her discharge.

10.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 11 of that regulation provided for the separation of personnel in an entry level status for unsatisfactory performance or conduct as evidenced by inability, lack of reasonable effort or a failure to adapt to the military environment.  These provisions applied only to individuals whose separation processing was started within 180 days of entry into active duty.  An uncharacterized separation was mandatory under this chapter.  The proper separation code was "JGA" and the proper reentry code was "RE-3."

DISCUSSION AND CONCLUSIONS:

1.  The applicant would like an honorable discharge.  She states she was sexually harassed and she was told she would receive an honorable discharge in 3 months.

2.  There is no evidence to support the applicant's contention she was sexually harassed.  Likewise, there is no evidence to support her contention that she was told her uncharacterized discharge would be changed to honorable within 3 months of separation.  On the contrary, the Army has never had a program or policy to automatically upgrade discharges.  Discharge upgrades are considered on a case-by-case basis when the individual makes application.

3.  The evidence shows the applicant, immediately upon reporting to her first permanent duty station, began expressing her desire to be discharged.  The evidence shows her chain of command appropriately counseled her and referred her to individuals/agencies who could help her resolve her feelings toward the Army.  The applicant remained adamant that she did not wish to remain in the Army; therefore, she was processed for discharge within her first 6 months of service.

4.  The applicant's entry level status performance and conduct discharge mandated an uncharacterized discharge.  Her discharge proceedings were conducted in accordance with law and regulations applicable at the time.

5.  An uncharacterized discharge is not meant to be a negative reflection of a Soldier’s military service.  It merely means that the Soldier has not been in the Army long enough for his or her character of service to be rated as honorable or otherwise.  As a result, there is no basis for granting the applicant's request for an honorable discharge.




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)                                         AR20090010353



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ABCMR Record of Proceedings (cont)                                         AR20090010353



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