IN THE CASE OF:	  

		BOARD DATE:	  16 June 2011

		DOCKET NUMBER:  AR20100029684 


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.  She states that she was raped and rendered unable to follow through with her assignment.  She contends she was working under the command of one of her assailants and with another who continued threatening her with death if she disclosed the incident.  She was impregnated and she decided against abortion because of her religious beliefs and raised the child while suffering from mental disabilities which were mounting as a result of non-treatment.  She discovered that her discharge was not truly honorable and she was tainted as was her time in the service, but not because of her own wrongdoing.  She adds she was a casualty of war (stateside) at her fellow Soldiers' hands and she should not be penalized.

3.  The applicant provides her DD Form 214 (Report of Separation from Active Duty) and a Department of Veterans Affairs (DVA) Rating Decision.

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 15 February 1977.  Upon completion of initial entry training, she was awarded military occupational specialty 71L (Administrative Specialist).

3.  She accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice on:

* 17 February 1978 for disobeying a lawful order from a commissioned officer
* 2 August 1978 for being absent without leave (AWOL) during the period 20 June to 26 July 1978 (a period of 36 days)

4.  A Quartermaster Form Letter (QMFL) Form 684 (Record of Informal/Formal Counseling), dated 2 August 1978, shows she was counseled by her immediate commander for the AWOL offense.  The statement indicates the reason for her AWOL was her children because she was a sole parent and she had the burden of maintaining the welfare of her family.  Her commander also indicated that she felt that a discharge from the service would help stop the problem of being absent from her children.

5.  She was also counseled by the Assistant Brigade Chaplain and by her immediate supervisor.  Both counselors recommended her separation from the service because of her inability to fulfill her military obligations due to family issues.

6.  On 8 August 1978, she was notified by her immediate commander that action was being initiated to discharge her from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph
5-31 (Expeditious Discharge Program (EDP)) with a General Discharge Certificate.  The commander cited as the reasons for the proposed separation her responsibilities of being a sole parent interfered with her military duties thereby causing her to cut down on the output of her work.

7.  On 8 August 1978, she acknowledged the notification of her proposed discharge from the Army.  She voluntarily consented to the separation and she elected not to submit 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.

8.  On 11 August 1978, the separation authority approved her separation action and directed the issuance of a General Discharge Certificate.  On 16 August 1978, she was discharged accordingly.  Her DD Form 214 confirms she completed 1 year, 4 months, and 26 days of total active service.

9.  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.

10.  She provided a DVA Rating Decision that shows she is currently receiving service-connected disability compensation for post traumatic stress disorder.

11.  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.

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.  The applicant's contention that her discharge should be upgraded because she was a victim of sexual abuse resulting in her inability to follow through with her assignment, has been carefully considered.

2.  Unfortunately, there is no evidence in her official military personnel file (OMPF), and she provided none, that substantiates her claim of sexual assault.

3.  The evidence of record shows she voluntarily consented to be discharged from the Army 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 NJP on two occasions and 36 days of time lost.  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 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 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)                                         AR20100026274



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ABCMR Record of Proceedings (cont)                                         AR20100029684



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