IN THE CASE OF:	  

		BOARD DATE:	  14 September 2010

		DOCKET NUMBER:  AR20090021070 


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 an honorable discharge.

2.  The applicant states she believes her record is unjust because of the circumstances surrounding her involuntary discharge which was solely due to domestic violence and abuse from her ex-boyfriend who is now deceased.  She continues to state that the obstruction of justice charge is the result of her not disclosing her ex-boyfriend's whereabouts to the Federal Bureau of Investigation FBI).  She also states the lives of her family were in danger since her ex-boyfriend told her that if she exposed him he would bring deadly harm to them.  She further states that she had to convince her ex-boyfriend of her loyalty by writing to him throughout her ordeal.  She concludes by stating she was punished for being a victim of domestic violence and abuse and wishes to move on with her life professionally.  She finally states that this negative stigma/description of her should be removed from her DD Form 214 (Certificate of Release or Discharge from Active Duty).

3.  The applicant provides a copy of her DD Form 214 and a self authored statement.

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) on 2 September 1987.

3.  On 25 January 1988, the applicant received non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for failing to obey a lawful command to not have contact with her ex-boyfriend and for failing to obey a lawful command to not operate her car without insurance.

4.  The applicant's records also show she received five general counseling statements between13 December 1987 and 10 June 1988 for a disturbance at her home between family members, substandard duty performance, failure to be at her appointed place of duty, and for being late for formation.

5.  On 7 October 1988, the applicant was notified by her unit commander that separation action was being initiated against her under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraphs
14-12b(1)(2), and 14-12c and c(1) misconduct -  commission of a serious offense, with an under other than honorable conditions discharge.  The commander cited the specific reasons for the recommended action as:

* obstruction of justice, sodomy, indecent acts, adultery
* AWOL (absent without leave) from 24 June 1988 to 20 July 1988
* civilian arrest for assault on 8 July 1988
* two violations of Article 90, disobeying a superior commissioned officer between 6 - 12 January 1988 and on 21 June 1988
* off-post misconduct in civilian quarters
* off-post discreditable conduct in regards to damage and uncleanliness of quarters 
* numerous failures to report or being late for duty, and disrespect to a commanding officer
* disrespect to commanding officer on 13 June 1988

6.  On 5 December 1988 the applicant was notified to appear before a Board of Officers on 9 January 1988 to determine whether she should be discharged by reason of misconduct before the expiration of her term of service.  On the same date the applicant acknowledged receipt of the proposed action against her and consulted with legal counsel.  She was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to her, and the effect of any action taken by her in waiving her rights.  Subsequent to receiving this counseling, the applicant completed her election of rights and she indicated she would submit statements in her own behalf; however, no such statements are contained in the available records.

7.  On 9 January 1988, a Board of Officers convened to determine if the applicant should be discharged under the provisions of Army Regulation 635-200, paragraphs 14-12b(1)(2), and 14-12c and c(1) misconduct - commission of a serious offense, with an under other than honorable conditions discharge.  The Board of Officers recommended the applicant's discharge from the service because of patterns of misconduct and serious misconduct.

8.  On 27 February 1989, the separation authority approved the separation action and directed issuance of a General Discharge Certificate.

9.  On 6 March 1989, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct - commission of a serious offense.  The DD Form 214 she was issued at the time confirms she completed a total of 1 year, 5 months, and 9 days of creditable active service.

10.  On 8 July 1997, the Army Discharge Review Board (ADRB) determined that the characterization of her discharge was both proper and equitable and denied her request for an upgrade to honorable.  However, the ADRB determined that the reason and authority for her discharge should be changed from misconduct - commission of a serious offense to misconduct.

11.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes 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.

12.  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.  There is no evidence in the applicant’s record and the applicant did not provide any evidence that shows domestic abuse was the basis for her discharge.  The evidence shows that she received NJP for disobeying lawful orders and her separation action shows she was discharged for misconduct due to AWOL, civilian arrest for assault, indecent acts, obstruction of justice, and numerous failures to report or being late for duty.

2.  The applicant's contentions that she was a victim of domestic violence, abused, and feared for her life are noted; however, these contentions are not supported by any evidence in the applicant's record.  When given the opportunity to make a statement the applicant did not mention anything about being abused by her ex-boyfriend.

3.  The evidence of record shows that the applicant was discharged with a general discharge by reason of misconduct.  The applicant’s record shows that she violated the Army’s established polices which compromised the trust and confidence placed in her as a Soldier.  The applicant had a duty to support and abide by the Army’s policies.  By committing these offenses, the applicant risked her military career.  Therefore, her service does not warrant an upgrade of her general discharge to 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)                                         AR20090021070



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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