IN THE CASE OF:	  

		BOARD DATE:  19 June 2012

		DOCKET NUMBER:  AR20110024132 


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 her general discharge be upgraded to an honorable discharge.

2.  The applicant states that charges of misconduct and homosexuality were never proven.

3.  The applicant provides a completed DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States).

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 enlisted in the Regular Army (RA), in pay grade E-3, on 9 February 1984, for 3 years.  She did not complete training for award of a military occupational specialty.

3.  She was counseled between June and July 1984 for the following:

* failing to return (FTR) to morning physical training (PT) and class
* being at assigned place of duty
* alleged homosexual activity with another Soldier of her unit
* discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 15, for homosexuality based on acts which she committed on 16 June 1984
* on her responsibility to be at her place of duty on time
* failing to comply with a lawful order
* on her responsibility to make PT

4.  She accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice on: 

* 27 July 1984, for failing to go to her appointed place of duty on 26 July 1984
* 14 August 1984, for failing to obey a lawful order on 13 August 1984

5.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 21 June 1984, shows the applicant's behavior was found to be normal.  Her level of alertness and orientation were found to be fully alert and fully oriented.  Her mood was level and her thinking process was clear.  Her thought content was found to be normal and her memory was good.  The examining medical doctor found no significant mental illness and that the applicant was mentally responsible, able to distinguish right from wrong, and able to adhere to the right.  The applicant had the mental capacity to understand and participate in board proceedings and met the retention standards of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  He stated:

	a.  The applicant described getting very intoxicated on the evening in question.  She denied any knowledge of the incident or any recollection of the actions which were alleged to have occurred.

	b.  She denied any past or present homosexual thoughts, desires or actions.  She gave a history of a normal heterosexual orientation.  She gave a history of only one previous intoxication that occurred 3 years ago.  She gave evidence to support a good military career, such as high ranking in the advanced individual training course.  She gave evidence to support retention under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 15, paragraph 3a(1)(5).

6.  On 15 August 1984, the applicant's unit commander notified her of the intent to initiate action to discharge her from the Army under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  The unit commander stated:

   a.  The applicant lacked the motivation and self-discipline necessary for continued military service.  The packet clearly indicated that all measures of rehabilitation had been utilized to assist her in becoming a productive Soldier, but she simply had refused to respond.
   
   b.  She was command referred to the Community Mental Health Service (CMHS) after female Soldiers in the barracks complained of indecent sexual acts occurring between her and another Soldier (her roommate) in their room.  CMHS indicated that the applicant did not meet the criteria for separation under the provisions of chapter 15 (Homosexuality).
   
   c.  She received one company grade Article 15 for FTR while a member of that command.  As a result of the Article 15 she was reduced in rank, given extra duty, and placed on restriction, all of which had no beneficial results nor produced a change in her behavior.  She had a poor attitude, refused to follow instructions or orders, and did not cooperate with peers or superiors.
   
   d.  She was not motivated toward serving satisfactorily and would not adapt to the demands of military service.  Further efforts to motivate or rehabilitate the applicant could not be justified and would not be cost effective in the expenditures of time, personnel, resources, or money.  She was of no value to the Army and should be discharged now.

7.  On 15 August 1984, the applicant's battalion commander stated that the military could not condone willful disobedience as demonstrated by the applicant's detrimental effect on the unit and exhibited by her conduct.

8.  On 20 August 1984, after consulting with counsel, the applicant acknowledged the proposed separation action under the provisions of chapter 13, Army Regulation 635-200 for unsatisfactory performance and of the rights available to her.  She waived her right to have her case heard before a board of officers and elected not to submit a statement in her own behalf.  She also acknowledged she understood she might be issued a general discharge.  


9.  In a memorandum, dated 24 August 1984, the applicant's unit commander stated that the applicant felt that he was being unfair about her discharge and that it belied her true character of service.  He advised the applicant that she could have been an asset to the Army, but unfortunately she had actively engaged in many ways to go against good order and discipline.  He felt she deserved an under less than honorable conditions discharge; however, for the sake of expediency, he recommended a general discharge.

10.  On 28 August 1984, the applicant’s unit commander recommended the applicant be separated from the service for unsatisfactory performance under the provisions of Army Regulation 635-200, paragraph 13-2a.  He stated that she was unqualified for further military service and all attempts to counsel and rehabilitate had failed.

11.  On 30 August 1984, the appropriate authority approved the applicant's discharge and directed the issuance of a general discharge.

12.  She was discharged in pay grade E-3 on 6 September 1984, under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance, and issued a general discharge.  She was credited with completing 6 months and 28 days of active service and no time lost.

13.  On 16 March 1986, the Army Discharge Review Board denied her request for a change in the character and/or reason for her discharge.

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 13 provided the policy and outlined the procedures for separating individuals for unsatisfactory performance. Service of individuals separated because of unsatisfactory performance would be characterized as honorable or under honorable conditions (general) as warranted by their military records.

15.  Army Regulation 635-200, paragraph 3-7a, stated an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was twice punished under Article 15 for misconduct.  Between June and July 1984 she received counseling for unsatisfactory performance.  Her unit commander initiated action to separate her for unsatisfactory performance.  He stated she lacked the motivation and self-discipline necessary for continued military service and she had a poor attitude, refused to follow instructions or orders, and did not cooperate with peers or superiors.  The appropriate separation authority approved her discharge and she was discharged accordingly on 6 September 1984 with a general discharge.

2.  While she received counseling for alleged homosexual activity with another Soldier of her unit, the CMHS indicated she did not meet the criteria for separation under the provisions of chapter 15.  It appears her chain of command initiated separation action against her because of her unsatisfactory performance, not because of homosexuality. 

3.  Her discharge proceedings, for unsatisfactory performance, were conducted in accordance with law and regulations in effect at the time.  The characterization of her discharge was commensurate with the reason for her discharge in accordance with the governing regulations in effect at the time.

4.  There is no evidence in her records and she has provided no evidence to show her discharge was unjust.  She has also provided no evidence sufficient to mitigate the character of her service.  She acknowledged she understood that she might be issued a general discharge.  Her repeated unsatisfactory performance diminished the quality of her service below that meriting a fully honorable discharge.  

5.  Without sufficient evidence, it appears her administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize her rights.  Therefore, she was properly discharged in accordance with pertinent regulations with due process.

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)                                         AR20110024132





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110024132



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1