BOARD DATE:	  16 August 2012

		DOCKET NUMBER:  AR20120003058 


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 under other than honorable conditions discharge be upgraded to a general under honorable conditions discharge.

2.  The applicant states, in effect, 30 years have passed since her discharge and she has been unable to receive Department of Veterans Affairs (DVA) medical benefits due to her discharge.  The applicant adds that:

* she was raped at Fort Jackson, SC, and became pregnant 
* the rape was reported, but it was swept under the carpet 
* she gave birth to a male child and placed him up for adoption
* she moved on with her career by graduating from the noncommissioned officer development course and she reenlisted 
* she was assigned to Germany and became a victim of a sexual assault after her platoon sergeant tried to force himself on her 
* her military service records should contain a report of the incident, which caused military sexual trauma 
* no action was taken against her platoon sergeant
* after filing the report she was reassigned to duties as a mail clerk
* her commander preferred court-martial charges against her for theft of a U.S. Postal money order 
* she had no knowledge of the money order being missing and felt that she was being set up
* she refused the court-martial and requested a chapter 10, for the good of the service – in lieu of court-martial
3.  The applicant provides her DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and four letters of support from her grandmother, her pastor, and two associates.

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 17 May 1977 and successfully completed training.  She was awarded military occupational specialty 71L (Administrative Specialist).  On 18 November 1979, she was honorably discharged for the purpose of immediate reenlistment on 19 November 1979.  

3.  On 9 August 1982, the U.S. Army Criminal Investigation Command (USACIDC, also known as CID) Report of Investigation (ROI) Number
0284-81-CID127-XXXXX-XXXXX/XXX, shows the CID titled the applicant in the ROI.  The investigation revealed the applicant stole, by undetermined means, a U.S. Postal money order belonging to the U.S. Government.  The investigation established the applicant gave the money order to private first class (PFC) M_____ M_______, without his knowledge of the larceny, after which time it was negotiated in the amount of $450.00.  After review of the evidence, there was sufficient probable cause to list the applicant in the title block of the investigation for larceny.

4.  On 13 September 1982, court-martial charges were preferred against the applicant for stealing a U.S. Postal money order and committing forgery.

5.  On 14 October 1982, after consulting with counsel, the applicant submitted a request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of court-martial.  She acknowledged in her request that she understood she could be discharged under other than honorable conditions, that she could be deprived of many or all Army benefits, that she could be ineligible for many or all benefits administered by the DVA, and that she could be deprived of her rights and benefits as a veteran under both Federal and State laws.  The applicant elected not to make a statement in her own behalf.

6.  On 18 October 1982, the appropriate authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10 and directed the applicant be reduced to the lowest enlisted grade and furnished an under other than honorable conditions discharge certificate. 

7.  On 28 September 1982, the applicant was discharged with an under other than honorable conditions discharge.  She completed 5 years, 5 months, and 
12 days of total active service.

8.  The applicant’s military service and medical records do not contain evidence of her reporting a rape at Fort Jackson, SC or sexual assault while assigned in Germany.

9.  The applicant provided four letters of support from her grandmother, her pastor, and two associates.  All of the authors state the applicant is a licensed and ordained minister.  She also serves as a youth minister for her church and is always willing to help and encourage those in need in the community.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. An under other than honorable conditions discharge is normally considered appropriate.

11.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for upgrade of her under other than honorable conditions discharge to a general under honorable conditions discharge was carefully considered and it was determined there is insufficient evidence to support her request.
2.  After reviewing the applicant's request for discharge and the charges preferred against her, the separation authority approved her voluntary request for discharge in lieu of court-martial and directed that she be issued an under other than honorable conditions discharge.  Accordingly, the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial.  

3.  Records clearly show the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects her misconduct.

4.  Based on her record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders her service unsatisfactory.  Therefore, the applicant is not entitled to a general discharge.

5.  The applicant claims she was raped at Fort Jackson, SC, and sexually assaulted in Germany.  Unfortunately, there is no evidence in her military service or medical records and she has not provided evidence that shows a rape or sexual assault occurred. 

6.  The ABCMR does not grant requests for upgrade of discharge solely for the purpose of making the applicant eligible for veteran’s benefits.  Every case is individually decided based upon its merits.  

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)                                         AR20120003058



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120003058



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1