BOARD DATE:	  14 July 2011

		DOCKET NUMBER:  AR20100029948 


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 an upgrade of her general discharge to an honorable discharge.

2.  She also requests amendment to Item 25 (Separation Authority) and Item 28 (Narrative Reason for Separation) of her DD Form 214 (Certificate of Release or Discharge from Active Duty).

3.  She states that she was separated from the service without full and due consideration for all the events that occurred prior to her discharge from the service.  The reason that she did not receive an honorable discharge was because she attempted to take her own life.  What was not known or considered was that prior to her attempted suicide, she had been sexually assaulted by a fellow officer in her battalion.  At the time, she was not emotionally capable of either reporting or coping with the incident and it was her firm conviction that the account of her assault would not be held as credible.  

4.  She also stated that in the summer of 1988, she was deployed with her unit to participate in a joint service exercise.  During the course of the exercise, she was granted a weekend pass.  She and three other individuals decided to go to Las Vegas on this weekend.  Upon arrival in Las Vegas, they were not able to get separate accommodations because rooms were not available.  She had to share a room with a fellow member of her unit.  The room had two double beds and she paid for her half of the cost of the room and he paid for his half.  When she returned to the room after dinner she immediately feel asleep due to her 
tiredness.  She had consumed no alcohol during the course of the day or evening.  She woke up to find the roommate, the captain, lying on top of her and already in the process of forcing intercourse.  The smell of alcohol was on his breath.  She froze and she is not sure why she did not fight back.  She has been told by her therapist that it is not uncommon for women to be so shocked by the assault that they are incapable of defending themselves.

5.  She further states that in addition to the shame and self-accusation that occurs with all rape victims, there are several reasons she did not report the assault:

* She didn't think anybody would believe her
* She was in shock
* She was aware the captain was a buddy of the battalion commander

Even today, the memories of what happened following the rape are unclear.  She can only describe it as having a nervous breakdown due to the rape.  She was sent to a counselor and prescribed antidepressants.  The everyday sexual harassment from the battalion commander and many of the other men at the time and that she had to see her rapist in the hallway was too much to bear.  

6.  She also states that her final hospitalization was due to a suicide attempt.  Following hospitalization, she was told that she would be discharged and the paperwork took several months to be processed.  She was discharged on 12 December 1989 with a general discharge.  Army Regulation 635-120 (Personnel Separations – Officer Resignations and Discharge), chapter 4, was listed as the separation authority and the narrative reason given was misconduct, moral, or professional dereliction of duty.  She believes Army Regulation 635-100 (Personnel Separations – Officer Resignations and Discharge) should be listed.  Army Regulation 635-120 and the narrative reason should never have been applied and are totally inappropriate to the events that led up to her separation.  She would like it noted that following her release from the hospital she was able to serve without incident around medication once she was removed from the unit.

7.  She provides a letter of support from a licensed clinical social worker (LCSW).

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's military record shows she was appointed in the U.S. Army Reserve (USAR), Military Intelligence Branch, as a second lieutenant, on 1 August 1985.  She entered active duty for training (ADT) on 20 August 1985.  She completed training and was awarded area of concentration 35A (Tactical Intelligence Officer).  She was honorably released from ADT on 28 February 1986 and was transferred to the USAR Control Group (Annual Training).  

3.  She was again ordered to active duty and entered active duty on 27 February 1987.  She was promoted to first lieutenant on 18 February 1988.

4.  On 20 July 1989, the applicant's company commander initiated action under the provisions of Army Regulation 635-100, paragraph 5-32, to require the applicant to show cause for retention on active duty.  He stated that the applicant was currently serving in a probationary status.  He recommended her separation with a general discharge.  His recommendation was based on the following:

* Substandard performance of duty
* Being diagnosed as suffering from a paranoid disorder and major depression
* Demonstration of a defective attitude, lack of leadership, and failure to correct her inefficiencies
* Acts of personal misconduct and conduct unbecoming an officer by communicating a threat to kill her battalion commander

He also initiated action to suspend the applicant's access to classified information due to her personality disorder and suicide attempt.  The applicant's battalion and brigade commanders concurred with the recommendation for initiation of elimination with a general discharge.

5.  A Report of Psychiatric Evaluation, dated 28 July 1989, shows she was diagnosed with Paranoid Personality, Major Depression, Recurrent.  She was found to be mentally responsible and able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in any board proceedings.  The evaluating psychiatrist noted that her mood disorder 

continued under treatment and he did not believe it was the reason for her poor military performance.  She continued to be unable to cope with the stress of military life because of her personal problems.  He opined that the applicant's condition was not amendable to hospitalization, treatment, transfer, disciplinary action, training, or reclassification in his opinion.  The evaluating psychiatrist recommended the applicant be psychiatrically cleared for any administrative action deemed appropriate by command and may include separation from the service.  

6.  On 12 September 1989, after consulting with counsel, she voluntarily tendered her resignation from the Army for the good of the service under the provisions of Army Regulation 635-120, chapter 4, in lieu of further elimination proceedings.  She elected not to appear before a board of officers and acknowledged that she had been advised of and fully understood the implications of this voluntary action.

7.  On 1 October 1989, the convening separation authority recommended approval of the applicant's resignation under the provisions of Army Regulation 635-120, chapter 4, with the issuance of a general discharge due to the nature of the misconduct.

8.  On 27 November 1989, the Secretary of the Army approved the applicant's resignation in lieu of elimination with a general discharge.  On 28 November 1989, she acknowledged receipt of her approved discharge from the Army.

9.  She was discharged in rank of first lieutenant on 12 December 1989, under the provisions of 635-120, chapter 4, for Misconduct, Moral or Professional Dereliction, with a general discharge.  She was credited with completion of 2 years, 9 months, and 16 days of active service and no time lost.

10.  She was issued a DD Form 214 showing the following entries:

* Item 25 - "Chapter 4, Army Regulation 635-120"
* Item 28 - "Misconduct, Moral or Professional Dereliction"

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

12.  In a letter, dated 19 March 2010, her LCSW stated that she had been treating the applicant for the past 3 years for the diagnosis of post traumatic stress disorder stemming from early childhood sexual assault.  She also stated that this condition was not diagnosed at the time of the applicant's military service and may not have 
affected her service performance had the applicant not suffered a retraumatizing sexual assault by a fellow officer.  She was further convinced that event led to the applicant's suicidal ideation, subsequent erratic behavior, and hospitalization.  She believed there was significant cause to make a redetermination in the applicant's favor.

13.  Army Regulation 635-120, in effect at the time, prescribed the procedures whereby an officer on active duty could tender his/her resignation or be discharged.  Chapter 4 specified an officer who had been formally recommended for elimination from the service or to show cause why he/she should not be eliminated pursuant to Army Regulation 635-100, chapter 5, may tender a resignation in lieu of elimination action.  If the resignation was accepted by Headquarters, Department of the Army, under honorable conditions, the officer would be furnished a General Discharge Certificate.

14.  Army Regulation 635-100, in effect at the time, paragraph 5-1 prescribed the procedures to eliminate officers from the Army for substandard performance of duty, misconduct, moral or professional dereliction, or in the interest of national security, for elimination proceedings initiated on or after 15 September 1981.  Paragraph 1-5 specified the character of discharge would be predicated on the officer’s behavior and performance of duty while a member of a military service.  Characterization normally would be based on a pattern of behavior and duty performance rather than an isolated incident.  There were circumstances, however, in which conduct reflected by a single incident could provide the basis for characterization.  An officer would normally be furnished an honorable discharge unless conditions existed or as directed by the Secretary of the Army.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows on 20 July 1989, while serving on active duty, the applicant's company commander initiated action for the applicant to show cause for retention on active duty for her elimination for substandard performance and acts of personal misconduct and conduct unbecoming an officer, with a general discharge.  She acknowledged the reason for this action.  After consulting with counsel, she voluntarily tendered her resignation.  Her resignation was approved and she was discharged accordingly under the provisions of Army Regulation 635-120, chapter 4, with a general discharge.

2.  The applicant and the LCSW's contentions were carefully considered.  However, no evidence or convincing argument was provided to show the applicant was sexually assaulted by a fellow officer during her period of active duty and is a basis for an upgrade of the applicant's discharge.  Also, no evidence or convincing argument was provided to show her past and current diagnoses adversely affected her service performance and she was unjustly prevented from completing her period of active duty.

3.  There is also insufficient evidence of record to show her discharge should be upgraded and her military records contain no evidence which would entitle her to an upgrade of her general discharge.  The evidence shows her separation action was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized her rights.  Absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  

4.  She was issued a DD Form 214 showing the following entries:

* Item 25 - "Chapter 4, Army Regulation 635-120" 
* Item 28 - "Misconduct, Moral or Professional Dereliction"

The evidence of record shows the separation authority and narrative reason for separation applied to her DD Form 214 are commensurate with and correspond to the reason for her discharge.  She did not show through the evidence submitted or the evidence of record that the separation authority and narrative reason for separation shown on her DD Form 214 are incorrect and should be amended.  

5.  In view of the foregoing, there is no basis for granting the requested relief. She was properly discharged and she has not shown otherwise.

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)                                         AR20100029948



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ABCMR Record of Proceedings (cont)                                         AR20100029948



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