IN THE CASE OF:	  

		BOARD DATE:	  7 April 2011

		DOCKET NUMBER:  AR20100023039 


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 was coerced by her superiors in the chain of command to sign the paperwork that dismissed her from the Army.  She took an overdose of drugs and was taken to the emergency room.  She contends that she attempted suicide because she was being sexually abused and she knew no other way out.  She adds that when she was told to sign the papers, she was not informed that her discharge would read "Under Honorable Conditions" and she was afraid of what they would do to her if she did not sign them.

3.  The applicant provides no additional evidence.

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 on 18 October 1979 and upon completion of initial entry training, she was awarded military occupational specialty 71Q (Journalist).

3.  On 17 June 1981, she was seen at the Community Mental Health Activity (CMHA) as a self-referral because of job-related stress and depression.  The psychiatric evaluation indicates that she stated she wanted to be discharged from the Army because she was angry and frustrated with all aspects of military life.  She felt discriminated against by her peers and superiors and had worked too much time and too hard without recognition and/or job satisfaction.  She reported being sexually harassed without action being taken and that she had almost been raped.  She also stated that she would get out of the Army even if it required her getting into a great deal of trouble.  The evaluating official found no evidence of any thought or major affective disorders and she was cleared for any administrative action deemed appropriate by her command.

4.  On 17 July 1981, the Chief, Social Work Service provided a statement and stated that further CMHA evaluation of the applicant was not warranted.  He indicated that the applicant was attempting to avoid her reassignment to Korea through a variety of passive-aggressive ploys and recommended further disposition based upon her duty performance, through normal counseling, and administrative and disciplinary channels.

5.  On 20 July 1981, her supervisor provided a statement in which he stated that on 17 July 1981, the applicant confronted him and a staff sergeant and stated the following:  "I want you [expletive] to know I'm not coming to work anymore."  On the same date, her supervisor provided a second statement that shows she failed to report for duty in a timely manner on 20 July 1981, without informing her chain of command of her whereabouts.

6.  On 20 July 1981, the Public Affairs Officer, a commissioned officer, requested the applicant be punished under the Uniform Code of Military Justice (UCMJ) because of one instance of disrespect towards a noncommissioned officer and for one instance of failing to report to her appointed place of duty.

7.  On 21 July 1981, she was again seen at the CMHA as a self-referral for job dissatisfaction, stress, and depression.  After the evaluation, the evaluating 

official concluded there was no significant psychopathology that warranted further evaluation or disposition through medical channels.  The evaluating official further stated the applicant had resolved to getting out of the Army at any expense and recommended her separation under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 5 (Expeditious Discharge Program (EDP)) or Chapter 13 (Separation for Unsuitability) for disciplinary reasons, since sufficient grounds existed for use of either separation chapter.

8.  On 30 July 1981, she was informed by her immediate commander that action was being initiated to release her from active duty under the provisions of Army Regulation 635-200, paragraph 5-31, under the EDP.  Her commander cited as the reasons for the proposed separation her excessive desire for discharge, and in order to gain that discharge, violating Article 91 (Insubordination), Article 86 (Absence without Leave), and Article 134 (General Article).  The commander also stated that the mental evaluation confirmed her tendency to continue those acts unless discharged.

9.  The applicant, after consulting with counsel, acknowledged notification of her proposed separation from the Army.  She voluntarily consented to the separation and submitted a statement in her own behalf.  She further acknowledged she understood that if she were issued a general discharge, she could expect to encounter substantial prejudice in civilian life and that she had been afforded the opportunity to consult with an officer of the Judge Advocate General's Corps.

10.  She stated in her statement that she was willing to accept the discharge in order to benefit the Army and herself.  She believed that she should be given an honorable discharge because her record reflected numerous awards and letters for her past 22 months of military service with no record of disciplinary actions.  She believed the CMHA evaluations were accurate and also believed that some of the statements included in her packet were false and written through collaboration but she was advised by a Trial Defense Service lawyer not to dispute the statements.

11.  The separation authority approved her separation action and directed her service characterization as "under honorable conditions."  On 7 August 1981, she was released from active duty (REFRAD) and she was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete her remaining Reserve obligation.  Her DD Form 214 confirms she completed 1 year, 9 months, and 20 days of creditable active service.  Item 28 (Narrative Reason for Separation) of her DD Form 214 shows the entry "failure to maintain acceptable standards for retention."

12.  There is no evidence showing she was sexually harassed, abused, or that she was discriminated against.

13.  There is no evidence showing that she applied to the Army Discharge Review Board for an upgrade of her discharge within its 15-year statute of limitations.

14.  Army Regulation 635-200, in effect at the time, set for the basic authority for the separation of enlisted personnel.  Paragraph 5-31 provided that members who had completed at least 6 months but less than 36 months of continuous active service on their first enlistment and who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential may be discharged under the EDP.  It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary.  No member would be discharged under this program unless he/she voluntarily consented to the proposed discharge.  Issuance of an honorable discharge certificate was predicated upon proper military behavior and proficient performance of duty during the member's current enlistment with due consideration for the member's age, length of service, grade, and general aptitude.

15.  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 her Official Military Personnel File, and she provided none, that substantiates her claim of sexual abuse.  The available evidence does show that she became disenchanted with the military, became disrespectful toward superiors, and was going to great lengths to be discharged from the military as evidenced by the CMHA evaluations. 

2.  The evidence of record shows she voluntarily consented to be REFRAD under the EDP.  Her separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

4.  Her record of indiscipline includes disrespect towards a noncommissioned officer and failing to go to her appointed place of duty without informing her chain of command of the reasons for her absence.  Based on this record of indiscipline, her overall record of service did not support the issuance of an honorable discharge by the separation authority at the time and it does not support an upgrade of her discharge now.

5.  In view of the above, her request should be denied.

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)                                         AR20100023039



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ABCMR Record of Proceedings (cont)                                         AR20100023039



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