IN THE CASE OF:	  

		BOARD DATE:	  10 May 2012

		DOCKET NUMBER:  AR20110022531 


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 correction of item 25 (Separation Authority), Item 26 (Separation Code), item 27 (Reenlistment (RE) Code), and item 28 (Narrative Reason for Separation) of her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show a more appropriate explanation for her separation.

2.  The applicant states she was sexually assaulted sometime in November or December 1981 [sic] by an Army staff sergeant while serving on active duty at Fort Lee, VA.  She was headed home on leave prior to her assignment in Germany when the assault occurred.  She never told anyone of her assault and it affected her duty performance at her next duty station.  She suffered from depression as a result of the trauma and was eventually discharged for failing to maintain acceptable standards for retention.  She paid the ultimate price because she wouldn't and couldn't talk about what happened.  

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's records show she enlisted in the Regular Army on 7 October 1980 and she held military occupational specialist 76C (Equipment Records and Parts Specialist).  She was assigned to the 143rd Signal Battalion, Germany, on 20 April 1981.

3.  On 17 August 1981, she received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to report to her appointed place of duty.  

4.  On 27 October 1981, she received NJP under the provisions of Article 15, UCMJ, for failing to go to her appointed place of duty.

5.  Between July 1981 and January 1982, she was frequently counseled by several members of her chain of command for repeatedly failing to maintain her clothing and equipment, repeatedly failing to be at her appointed place of duty, failing to obey lawful orders, and failing to follow applicable regulations.  

6.  On 19 January 1982, she underwent a psychiatric evaluation at the 3rd Armored Division, Mental Health Activity, Germany.  She had been referred for a psychiatric evaluation by her unit commander.  The examining psychiatrist stated the applicant wanted to get out of the Army and that attitude seemed to pervade her work performance.  She had difficulty working with others, did not like to follow orders, and did not like the rigidity of Army life.  The applicant stated she wanted a discharge for some time and was ready to go.  She asked a couple of questions about the effect of a discharge under Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 5, and was referred to the staff judge advocate.

7.  The examining psychiatrist stated the applicant was well groomed, appropriately dressed, her motor behavior, speech, and facial expressions appeared normal.  She appeared very amused by the proceedings, her thought process appeared normal, and her affect and mood were unremarkable.  Her insight and judgement were fair and there was no suicidal or homicidal ideation presenting.  He also stated the applicant had not made the required adjustment to military discipline and did not wish to become a Soldier.  She was resistant to input from supervisors and did not attempt to get along with her peers.  She was not diagnosed with any disorder and was psychiatrically cleared for any administrative action deemed appropriate by the command. 
8.  On 22 January 1982, her immediate commander recommended the applicant for separation under the provisions of Army Regulation 635-200, paragraph 5-31 (Expeditious Discharge Program).  The specific reasons noted were her extremely poor work performance and complete apathy towards her duties as evidenced by the Article 15 and numerous negative performance counselings she had received.  The commander also stated the applicant had great difficulty adjusting and maintaining the standards and policies of military service.

9.  On 9 February 1982, the separation authority approved her discharge under the provisions of Army Regulation 635-200, paragraph 5-31 for failure to meet acceptable standards for retention, and directed the issuance of a General Discharge Certificate.  

10.  On 4 March 1982, she was discharged.  The DD Form 214 she was issued confirms she was discharged under the provisions of Army Regulation 635-200, paragraph 5-31, expeditious discharge program, by reason of failure to meet acceptable standards for retention, with a separation code of JGH, and RE code of 3/3C.  Item 24 (Character of Service) of her DD Form 214 shows she received an honorable discharge.  She completed 1 year, 4 months, and 28 days of creditable active service.

11.  There is no evidence that shows she notified her chain of command that her attitude and poor performance was the result of having suffered sexual trauma or that she was suffering from depression during her active duty service.

12.  Army Regulation 635-200, paragraph 5-31, in effect at the time, 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 Expeditious Discharge Program.  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.  A general discharge is a separation from the Army under honorable conditions of an individual whose military record was not sufficiently meritorious to warrant an honorable discharge.

13.  Army Regulation 635-5-1 (Separation Program Designator (SPD)) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states that the SPD code JGH is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 15-31, expeditious discharge program by reason of failure to maintain acceptable standards for retention.  The SPD/RE Code Cross Reference Table stipulates that an RE-3 or RE-3C code will be assigned to members separated under these provisions with an SPD code of JGH.

DISCUSSION AND CONCLUSIONS:

1.  Notwithstanding the applicant's contention that her attitude was the result of having suffered sexual trauma at her previous duty station, there is no evidence in the available record and the applicant did not provide any evidence that shows her apathy and poor performance was the result of sexual trauma or that she suffered from depression while on active duty.  Rather, the examining psychiatrist found her to have no mental disorder and stated she expressed a desire to be discharged from the Army.

2.  The evidence of record shows her commander initiated separation action against her due to her poor work performance, apathy toward her duties, and great difficulty adjusting and maintaining military standards.  Her separation authority, SPD code, RE code, and narrative reason for separation were assigned based on the fact that she was separated under the provisions of Army Regulation 635-200, paragraph 5-13, expeditious discharge program.  Discharges under the expeditious discharge program required the Soldiers voluntary consent to the discharge.

3.  The only valid narrative reason for separation permitted under that paragraph is "Expeditious Discharge Program - Failure to Maintain Acceptable Standards for Retention."  In the absence of evidence to the contrary, it is presumed all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The separation authority, SPD code, RE code, and narrative reason for separation are correctly shown on her DD Form 214.  Therefore, there is no basis for granting the applicant's requested relief.

4.  In addition, the separation authority directed the applicant receive a general discharge, under honorable conditions; however, it appears an error was made and the applicant's DD Form 214 was completed showing she received an honorable discharge.  It is a policy of this Board to not disadvantage an applicant by making the situation any worse off for having applied for a correction to their record.  Therefore, no action will be taken with regards to amending her records to show the characterization of her service as under honorable conditions.
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)                                         AR20110022531





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ABCMR Record of Proceedings (cont)                                         AR20110022531



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