IN THE CASE OF:	

		BOARD DATE:	  2 March 2010

		DOCKET NUMBER:  AR20090016351 


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, an upgrade of her general under honorable conditions discharge to fully honorable.

2.  The applicant states that she was discharged for her inability to adjust to military life because she refused to submit to sexual advances made toward her by a sergeant.  He and another sergeant arranged for this discharge because she dared to go to the battalion commander about this issue and other advances and rumors made about her and ultimately made her enlistment unbearable.  The current court records across the country prove that this behavior is quite common amongst enlisted women.  How else would they explain promoting her to specialist (SPC)/E-4 after only 18 months into her enlistment?  She achieved her rank through hard work and training within her military occupational specialty (MOS).  She was even forced to test in each module 4 to 6 times whereas her male counterparts were required to only test once.  She also states that since her discharge, she has attended business school, obtained gainful employment, and led a happy life.  She is involved in her local church and community.  She also has a clean record and a high credit score.  She is determined to have her discharge upgraded.

3.  The applicant did not provide any additional documentary evidence in support of her application. 




COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests, in effect, an upgrade of the applicant's discharge to fully honorable.  

2.  Counsel states, in effect, that the applicant's discharge should be upgraded.  

3.  Counsel did not provide any additional documentary evidence in support of the applicant's 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's records show she enlisted in the Regular Army for a period of 3 years on 22 September 1982.  She completed basic combat and advanced individual training and was awarded military occupational specialty 64C (Motor Transport Operator).  She was promoted through the ranks to private first class (PFC)/E-3 on 22 September 1983 and SPC/E-4 on 1 March 1984.  She was assigned to the 5th Support Battalion, Fort Lewis, WA.

3.  The applicant's records show she was awarded the Army Service Ribbon and the marksman Marksmanship Qualification Badge with Rifle Bar (M-16).

4.  On 1 November 1983, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to her appointed place of duty on or about 25 October 1983 and willfully disobeying a lawful order from a superior noncommissioned officer (NCO) on or about 25 October 1983.  Her punishment consisted of 7 days of extra duty.


5.  The applicant's record contain an extensive history of counseling by different members of her chain of command for various infractions including failure to report, being found asleep while on guard duty, sleeping in the front of a military vehicle, lack of motivation, tardiness, constant complaints, unacceptable performance, failure to complete her assigned duties, failure to set a good example, using her illness to get out of training, leaving her room unsecured, multiple instances of failing to be at her appointed place of duty, improper loading of a trailer, failure to follow instructions, and misuse of a government vehicle.

6.  On 29 August 1984, the applicant's immediate commander initiated a Bar to Reenlistment Certificate against the applicant citing her extensive history of negative counseling and poor performance.  She was furnished a copy of this bar on the same date but elected not to make a statement in her own behalf.  The bar was ultimately approved by her battalion commander. 

7.  On 11 September 1984, the applicant again accepted NJP under the provisions of Article 15 of the UCMJ for being disrespectful in deportment toward a superior NCO on or about 10 August 1984 and treating a superior NCO with contempt by continuously arguing and yelling at him.  Her punishment consisted of a reduction to PFC/E-3, 14 days of extra duty, 7 days of restriction, and a forfeiture of $100.00 pay.

8.  On 2 October 1984, the applicant's immediate commander notified the applicant of his intent to initiate separation action against her under the provisions of chapter 13 of Army Regulation 600-200 (Personnel Separations) by reason of unsatisfactory performance.  The immediate commander cited the applicant's record of unsatisfactory performance.  

9.  On 3 October 1984, the applicant acknowledged receipt of the letter of notification of separation action in accordance with chapter 13 of Army Regulation 635-200.  She consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects, the rights available to her, and the effects of a waiver of her rights.  She further indicated that she understood that she may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to her.

10.  On 3 October 1984, the applicant's immediate commander initiated a recommendation for separation of the applicant under the provisions of chapter 13 of Army Regulation 635-200 by reason of unsatisfactory performance. The immediate commander remarked that despite counseling and rehabilitation efforts by various individuals, for infractions such as dereliction of duty, unsafe acts, lack of motivation, lack of concern, and poor vehicle maintenance, the applicant did not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory member.  Based on her past performance, it did not seem likely she would be able to effectively perform her duties or have potential for advancement or leadership.  

11.  On 4 October 1984, the separation authority approved the applicant's discharge from the Army under the provisions of chapter 13 of Army Regulation 635-200 by reason of unsatisfactory performance and directed her service be characterized as under honorable conditions (general).  On 22 October 1984, the applicant was accordingly discharged.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) she was issued confirms she was discharged for unsatisfactory performance in accordance with chapter 13 of Army Regulation 635-200 with a character of service as under honorable conditions (general).  This form also shows that she completed 2 years, 1 month, and 1 day of creditable active military service.

12.  On 5 June 1986, the Army Discharge Review Board denied the applicant's petition for an upgrade of her discharge.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.  A general or honorable discharge was considered appropriate.

14.  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 contends that her discharge should be upgraded.

2.  There is no evidence in the available records and the applicant did not provide any evidence that she was subjected to sexual advances/harassment or that she addressed such advances with her chain of command or the Equal Opportunity Office, the unit chaplain, or any other support channels. 

3.  The evidence of records shows that the applicant's duty performance was tarnished by two instances of NJP, a bar to reenlistment, and an extensive history of negative counseling.  Accordingly, her chain of command initiated separation action against her.  The evidence of record further shows that the applicant's separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would tend to jeopardize her rights.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time and the character of the discharge is commensurate with the applicant's overall record of military service.

4.  The applicant's successful post-discharge academic and personal achievements are noted.  However, they are not sufficiently mitigating to grant her the requested relief.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant failed to submit evidence that would satisfy this requirement.  Therefore, she is not entitled to 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)                                         AR20090016351



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ABCMR Record of Proceedings (cont)                                         AR20090016351



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