IN THE CASE OF:	  

		BOARD DATE:	  17 March 2011

		DOCKET NUMBER:  AR20100016111 


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 discharge to honorable.

2.  The applicant states:

* going to a hotel with a bunch of girls and getting drunk and noisy attracted a lot of attention
* although this was the only discreditable incident, it led to her discharge for unfitness
* up to that point, her conduct had been excellent
* her work performance had always been excellent and she was about to be promoted to corporal
* she was diagnosed as obsessive-compulsive, but doesn't really know what that means – anyway, it's no longer in her record, perhaps it was lost or burned
* she was told that as a result of the discharge she could never vote, would never have any rights, and could not appeal the discharge
* she would like to change the status of her discharge to be eligible for military burial benefits
* she has accomplished a great deal in her life – she has been married and raised four children, two of them veterans

3.  The applicant provides a 2009 report of a clean record from the local police department, a 1989 letter of completion for entry-level training in chemical dependency, identification cards as a Chemical Dependency Counselor in Minnesota (one dated 1995), a 1977 training certificate as a home health aide, a 1975 training certificate in accounting, a 1968 certificate of public service from the Cub Scouts, and three personal letters of recommendation (two from individuals who have known her for 15 and 40 years, respectively).

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 Womens Army Corps (WAC) on 28 June 1956.  She was 18 years of age and held a general education degree.  She had previously given birth to an illegitimate child and dropped out of high school.

3.  She completed basic training and advanced individual training as a clerk typist and was stationed at Fort Knox, Kentucky, on 21 November 1956.

4.  A clinical social worker's initial intake report commencing on 19 February 1957 relates that on 13 February the applicant had, of her own volition, gone to the Criminal Investigation Division (CID) and voluntarily rendered a statement attesting to the following:

* in December 1956, she and another WAC, Private H____, commenced a relationship involving embracing and kissing – this progressed to include mutual masturbation to orgasm
* on 1 February 1957, she went with a group of enlisted WAC's to a local motel for the purpose of homosexual activity

5.  The social worker's report related that the above activities led the applicant to feelings of guilt and remorse and she reported everything to her commanding officer because she wanted to "clear up the whole mess" and "go straight."  The applicant began making nervous rationalizations:

* the applicant felt her supervisor Sergeant (SGT) J____ was "riding" her since the incident – the writer noted that CID had informed him that SGT J____ did not know any details, only that the applicant was in some kind of trouble
* the WAC detachment commander, Captain (CPT) H____ stated that since the incident, the applicant "thinks she is a 'big wheel and somewhat of a martyr'…making decisions and handling all matters without consulting SGT J____ 'as if she was running the detachment'"

6.  A 30 April 1957 mental hygiene consultation report stated, "Patient is an unstable and impulsive person who has been in angry competition with men for a long time.  She has had one child.  She didn't know what she was getting into when she had these periods of occasional homosexuality in January and February 1957.  No indications of true chronic homosexuality.  No indication for separation [under the provisions of Army Regulation] 635-89 [Personnel Separations – Homosexuality]."

7.  The applicant was recommended for separation.  On 29 August 1957, she appeared with counsel before a board of officers that was convened to consider whether she should be separated for unfitness.  The board of officers found the applicant's record evidenced habits and traits of character that rendered her retention undesirable and recommended that she be separated with an undesirable discharge.

8.  The separation authority approved the findings and recommendation and she was separated under other than honorable conditions on 19 September 1957.  She had completed 1 year, 2 months, and 22 days of creditable service.

9.  On 11 January 1960, the Army Discharge Review Board considered the applicant's request to upgrade her discharge, examined her records, and denied her appeal.

10.  Army Regulation 635-208 (Personnel Separations – Discharge – Unfitness), in effect at the time, provided the authority for discharging enlisted personnel for unfitness.  Separation action was to be taken when the commander determined that the best interest of the service would be served by eliminating the individual concerned and reasonable attempts to rehabilitate or develop the individual to be a satisfactory Soldier were unlikely to succeed or rehabilitation was impracticable, such as in cases of confirmed drug addiction or when the medical and/or personal history indicated the individual was not amenable to rehabilitation measures, or disposition under other regulations was inappropriate.  Unfitness included frequent incidents of a discreditable nature with military or civil authorities.  An undesirable discharge was normally considered appropriate; however, in unusual circumstances, a general or honorable discharge was authorized as directed by the convening authority.

11.  Army Regulation 635-89, in effect at the time, required the separation of individuals who voluntarily participated in homosexual acts.  Individuals involved in isolated episodes stemming solely from immaturity, curiosity, or intoxication were excluded, but were to be eliminated under other regulations if appropriate.

12.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  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.

	b.  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 states that going to a hotel with a bunch of girls and getting drunk and noisy attracted a lot of attention.  It was the only discreditable incident, but it led to her discharge for unfitness.  Up to that point, her conduct had been excellent and her work performance had always been excellent.  She states she has accomplished a great deal in her life.  She has been married and raised four children, two of them veterans.

2.  What the applicant now describes as a single incident was described in the social worker's report as an ongoing occurrence that lasted from December to February.  Furthermore, the applicant's commander described her behavior after the incident as further disrupting good order and discipline.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize her rights.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

4.  The applicant's post-service activities have been noted, but they are not so exceptionally meritorious as to mitigate the applicant's behavior.

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 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 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)                                         AR20100016111



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100016111



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1