IN THE CASE OF:	  

		BOARD DATE:	  14 September 2010

		DOCKET NUMBER:  AR20100007949 


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, upgrade of her under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states, in effect, she served in the US Army where she thought she was safe and was an outstanding Soldier.  She also states, in effect, she was continuously raped and beaten by her husband and as a result has back pain, hypertension, post traumatic stress disorder, battered women's syndrome, depression, bipolar disorder, and injury to her eyes.  She continues to state that the military police (MP) were at her house every weekend even though she has no evidence to support this and she went to Army Community Services for help but did not receive any even after attending two sessions.  She also states, in effect, she was afraid so she went AWOL (absent without leave) from Germany knowing it was wrong, but she was being abused and her husband had taken her son.  She states, in effect, that she went to Hamilton, NY and was told she had been dropped from the rolls (DFR) and did not need to return to Germany.  She concludes by stating that she did not deserve this discharge because she was an outstanding Solider.  

3.  The applicant provides a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty), two personal references, two pages of a Department of Veterans Affairs (VA) Form 21-0781a (Statement in Support of Claim for Service Connection for Post-Traumatic Stress Disorder (PTSD) Secondary to Personal Trauma), and 11 pages of a VA Form 21-4138 (Statement in Support of Claim) 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 Regular Army (RA) on 16 September 1983.  The applicant was married in 1985 and that marriage produced one child.  

3.  The applicant's record contains a copy of a DD Form 458 (Charge Sheet), dated 10 July 1987, which shows that the applicant was charged under Article 86, Uniform Code of Military Justice (UCMJ), of AWOL between 6 June and 8 July 1987.

4.  On 10 July 1987, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to her.  Subsequent to receiving this legal counsel, she voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

5.  In her request for discharge, the applicant indicated that she understood that by requesting discharge she was admitting guilt to the charges against her or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  She further acknowledged she understood that if her discharge request were approved, she could be deprived of many or all Army benefits, that she could be ineligible for many or all benefits administered by the VA, and that she could be deprived of her rights and benefits as a veteran under both Federal and State laws.  She submitted no statement on her behalf.

6.  On 21 September 1987, the separation authority directed that the applicant be separated under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service in lieu of court-martial, and that she receive an under other than honorable conditions discharge.  On 3 November 1987, the applicant was discharged in the grade of private (PVT/E-1).  The DD Form 214 issued to her at the time confirms she completed a total of 4 years and 16 days of creditable active military service.  She had 30 days of lost time.  

7.  Item 9 (Awards, Decorations, and Campaigns) of her DA Form 2-1 (Personnel Qualification Record) shows she was awarded the Army Service Ribbon, Army Commendation Medal, and the first award of the Good Conduct Medal.  Item 18 (Appointments and Reductions) shows the highest grade she held was Specialist (E-4) with a date of rank of 1 April 1985.  

8.  The applicant submitted a copy of a VA Form 21-0781a dated 18 May 2010 which shows she submitted a statement in support of a claim for service connection for PTSD secondary to personal trauma.  These pages document various alleged incidents of physical abuse and rape documented by the applicant that occurred between 1 July 1985 and (dates unclear).   

9.  The applicant submitted 11 pages of VA Form 21-4138 in support of her claim for VA benefits.  The document states, in effect, she is requesting her discharge be upgraded to an honorable discharge so she is eligible for VA benefits because under the current regulations she would have not received a less than honorable discharge for the physical, emotional, and sexual abuse she suffered throughout her military career since spousal abuse is viewed differently today than it was when she was in the military.  She states, in effect, the awards, promotions, and commendations she received outweigh the minor or isolated offenses for which she received nonjudicial punishment.  She also states in her claim that her judgment was impaired because of the beatings and when her husband took their child back to the United States without her permission she reacted by going AWOL and that resulted in her being discharged.

10.  The applicant submitted two personal references dated 25 and 26 April 2010 in support of her application.

11.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An under other than honorable conditions discharge would normally be furnished to an individual who was discharged for the good of the service.

13.  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.

14.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that she was raped and abused are noted; however, there is no evidence in the applicant’s official record that corroborates the applicant's allegations.  She had a chance to raise this issue when she requested discharge, but it appears she elected not to make a statement on her own behalf to explain her reasons for going AWOL.

2. The applicant voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid a trial by court-martial.  She acknowledged she understood that she could be ineligible for many or all benefits administered by the VA and that she could be deprived of his rights and benefits as a veteran under both Federal and State laws.  There is no indication that the request was made under coercion or duress.

3.  The applicant’s record of indiscipline includes 30 days of AWOL.  Based on this record of indiscipline, her service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Her misconduct also renders her service unsatisfactory.  Therefore, she is not entitled to an honorable discharge or an under honorable conditions (general) discharge.

4.  The applicant also contends that her discharge should be upgraded so that he can obtain veterans' benefits.  Unfortunately, there are no provisions in Army regulations that allow the upgrade of a discharge for the sole purpose of securing veterans' benefits.  The applicant must provide evidence to prove the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the upgrade.

5.  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 has failed to submit evidence that would satisfy this requirement.

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)                                         AR20100007949



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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