IN THE CASE OF:	  

		BOARD DATE:	  26 January 2010

		DOCKET NUMBER:  AR20090012112 


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 upgrade of her general discharge to honorable.

2.  The applicant states she was forced to resign in lieu of elimination.  She performed her duties to the best of her abilities and received numerous positive officer evaluation reports (OER's).  She was actively pursued by the U.S. Army Criminal Investigation Command (USACIDC, also known as CID) in their efforts to build a case against her and other females.

3.  The applicant provides copies of her 27 August 1982 relief-for-cause OER with her support form and associated referral correspondence 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 was a U.S. Army Reserve captain (CPT) with about 7 years of continuous active duty when favorable actions were suspended on 27 August 1982 due to a CID investigation into possible violations of the Uniform Code of Military Justice.

3.  On 13 September 1982, the applicant acknowledged receipt of a relief-for-cause OER for the period ending 27 August 1982.  The following details were included:

	a.  In Part IV she received ratings of "1" in 13 of 14 areas ("1" being highest and "5" being lowest).  She received a "4" for item 8 (Displays sound judgment).  Associated remarks state, "CPT H____'s friendship with junior members of her unit led to a feeling of favoritism within her unit" and "CPT H____ was relieved of command for conduct unbecoming an officer."

	b.  In Part V her commander credited her with always exceeding requirements and being a very talented personnel officer.  Her personnel office is described as one of the best in Europe.  She had improved the quality of life for the enlisted personnel in her company and upgraded the quality of personnel records management.  She had also been relieved for cause due to homosexuality.  Although she denied any homosexual acts while in the Army, she admitted to pre-service acts and a preference for homosexuality once she left active duty.  Her potential was indicated by marking the "Do Not Promote" box.

	c.  In Part VII her senior rater marked her in the bottom block and commented that she was an outstanding staff officer who had achieved excellent statistics and commanded the best personnel center in the division.  However, she had received a letter of reprimand for fraternization with female enlisted Soldiers.  This, along with her recently admitted pre-service homosexual activity and continued association with admitted homosexuals had led to her relief for cause.

4.  The applicant indicated that she intended to appeal the OER, but there is no appeal in the available records.  There is also no available copy of the mentioned letter of reprimand.

5.  A 1 October 1982 message from the Commander, Military Personnel Center, Alexandria, Virginia, announced the acceptance of the applicant's resignation in lieu of elimination.  It directed that she be issued a general discharge under the cited authority of Army Regulation 635-120 (Officer Resignations and Discharges), chapter 4, due to misconduct by moral or professional dereliction.  There is no copy of the applicant's resignation in the available records.

6.  On 18 October 1982 the applicant was discharged accordingly.

7.  Army Regulation 635-120 served as the authority for resignation in lieu of elimination.  The regulation in effect at the time provided that officers who had been selected for elimination from the service by a general court-martial convening authority or who had been selected by a Department of the Army Selection Board for elimination, or to show cause why they should not be eliminated pursuant to Army Regulation 635-100 (Officer Personnel), may tender resignation in lieu of elimination.  Characterization of honorable, under honorable conditions, or under other than honorable conditions was authorized.

8.  Army Regulation 635-100 (Officer Personnel) provides that an officer is normally issued an honorable discharge except in certain situations, including those instances involving unqualified resignations where significant misconduct is involved.

9.  The Table of Maximum Punishments in the Manual for Courts-Martial shows that the authorized punishment for violation of Article 133 (Conduct Unbecoming an Officer) includes dismissal and 1 year of confinement or that confinement prescribed for the underlying offense.  Fraternization is punishable by 2 years of confinement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states she was forced to resign in lieu of elimination.  She was actively pursued by the CID in their efforts to build a case against her and other females.

2.  The regulations governing the Board's operation require that the discharge process must be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption.

3.  In view of the authorized punishments for the applicant's offenses an honorable discharge was clearly not warranted.

4.  Considering that an under other than honorable conditions discharge was authorized by the governing regulation, the award of a general discharge appropriately recognized the overall quality of the applicant's service.

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.

6.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20090012112



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ABCMR Record of Proceedings (cont)                                         AR20090012112



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