IN THE CASE OF:	  

		BOARD DATE:	  7 January 2009

		DOCKET NUMBER:  AR20090013125 


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 discharge from the Army National Guard be upgraded to honorable.

2.  The applicant states, in effect, that while attending initial active duty training (IADT) she was raped.  She indicates that as if that experience was not demoralizing enough she had to endure the interrogations of the CID [Criminal Investigation Command] who were frustrated and dissatisfied with her inability to identify the perpetrator.  Because of this incident and the time it took her to semi-recover from it, she was recycled back into a unit of strangers.  She had to try to deal with what happened to her without a support system.  Needless to say this was a very difficult time for her and many times she considered abandoning her service but she did not.  

3.  The applicant states that upon her return to Colorado a sergeant made unwanted, unsolicited, physical sexual advances toward her.  His advances brought back the memories of her assault and she felt assaulted all over again.  When she made it clear that she was not interested in him sexually, the sergeant stopped training her and isolated her from the others.  She felt scared and powerless and remembered how she was treated in IADT when she had spoken up.  With no where to turn and no one to confide in she felt the only option she had to get away from the situation was to stop attending drills.  Although she regretted not fulfilling her service obligation, the emotional toll of staying under these conditions one more year of a 6-year term seemed completely unbearable.    

4.  The applicant provides no documentary evidence in support of 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 enlisted in the Arizona Army National Guard on 7 March 1979 and was honorably discharged on 6 November 1979.  She enlisted in the Colorado Army National Guard on 7 November 1979 and trained as a fuel and electronic system repairer and a track vehicle repairer. 

3.  On an unknown date, a request for discharge for unsatisfactory participation was initiated.  The undated DA Form 2496 (Disposition Form) shows the applicant accrued 4 periods of being absent without leave (AWOL) in March 1984, that she failed to show up for counseling on 14 April 1984, and that since March 1984 she had never returned to her unit.  The form also states that the applicant had accrued a total of 28 AWOLs, that she was on the weight control program and not making satisfactory progress, that various attempts to contact her failed, and that the unit did not wish to retain her.   

4.  On 17 November 1984, the 193d Military Police Battalion recommended that the applicant be discharged on 5 December 1984.

5.  Discharge orders show the applicant was discharged with a general discharge on 5 December 1984 under the provisions of National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), paragraph 7-10r.  She was transferred to the U.S. Army Reserve Control Group (Annual Training).

6.  The applicant's National Guard Bureau [NGB] Form 22 (Report of Separation and Record of Service) shows that she was discharged on 5 December 1984 with a general discharge under the provisions of NGR 600-200, paragraph 7-10r for unsatisfactory performance.
7.  On 13 March 1985, the applicant was issued a general discharge from the Ready Reserve under the provisions of Army Regulation 135-178 (Separation of Enlisted Personnel). 

8.  NGR 600-200, in effect at the time, set forth the basic authority for the personnel management of enlisted personnel of the Army National Guard.  Paragraph 7-10r of this regulation stated that a Soldier would be discharged from the Army National Guard for unsatisfactory participation of members.  

9.  Army Regulation 135-178 provides for the separation of enlisted personnel of the Army Reserve and Army National Guard.  

10.  Army Regulation 135-178 provides, in pertinent part, that 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 military personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered.

2.  Evidence of record shows the applicant was discharged under honorable conditions (a general discharge) from the Colorado Army National Guard for unsatisfactory performance due to 28 periods of AWOL.  As a result, her record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant 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)                                         AR20090013125



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ABCMR Record of Proceedings (cont)                                         AR20090013125



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