IN THE CASE OF:
BOARD DATE: 20 December 2012
DOCKET NUMBER: AR20120009806
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. The applicant states:
* She was forced out of the military for filing a harassment complaint
* She never received a court-martial for any wrongdoings
* Even though it has been over 30 years, she wants her record clear of any defaults
3. The applicant provides no documentary 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 applicants 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 applicants 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 10 September 1974 for a period of 3 years. She completed her training and was awarded military occupational specialty 72E (telecommunications). She extended her enlistment on 24 August 1977 for a period of 7 months and on 21 April 1978 she extended her enlistment again for a period of 12 months. On 8 February 1979, she was honorably discharged for the purpose of immediate reenlistment. She reenlisted on 9 February 1979 for a period of 3 years.
3. Between 26 February 1979 and 5 August 1980, she was counseled for:
* Failing to return to work after being released to get a new hat
* Talking in formation
* Dishonored checks/indebtedness
* Negative attitude
* Refusal to follow instructions
* Lack of integrity
4. In July 1979, she accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for possessing marijuana.
5. On 24 July 1980, she received a letter of admonition for her unprofessional conduct as a Soldier in the U.S. Army. In the letter, her commander stated:
a. he was most disturbed at the testimony borne by the official investigation as a result of her complaint of sexual harassment. Specifically, her language and overt sexual gestures toward male personnel in the telecommunications center was his cause for concern.
b. this conduct is totally unprofessional and makes her future worth in the Army questionable.
c. future acts of this type of misconduct may lead to judicial action or administrative elimination from the Army.
6. In September 1980, NJP was imposed against her for being disrespectful in language toward a superior noncommissioned officer and disobeying a lawful order.
7. On 10 September 1980, the applicant was notified of her commander's intent to recommend her separation under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), paragraph 13-4c(2), by reason of
unsuitability due to apathy, defective attitude, or inability to expend effort constructively.
8. On 12 September 1980, she consulted with counsel and requested consideration of her case by a board of officers. She further elected not to submit a statement in her own behalf. She also acknowledged she understood she might expect to encounter substantial prejudice in civilian life in the event a discharge under conditions other than honorable was issued to her.
9. On 14 October 1980, a board of officers convened. The applicant appeared before the board with counsel. The board recommended the applicant be discharged for unsuitability and that a General Discharge Certificate be furnished.
10. On 22 October 1980, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200 for unsuitability (apathy, defective attitude, or inability to expend effort constructively) with issuance of a general discharge under honorable conditions.
11. On 31 October 1980, she was discharged accordingly with a general discharge. She completed 6 years and 2 days of creditable active service.
12. On 12 April 1982, the Army Discharge Review Board denied her request for an honorable discharge.
13. Army Regulation 635-200 governs the policies and procedures for the separation of enlisted personnel.
a. Paragraph 13-4c, in effect at the time, provided for discharge due to unsuitability because of apathy, defective attitude, or inability to expend effort constructively. The regulation stated that when separation for unsuitability was warranted, an honorable or general discharge was issued as warranted by the member's military record.
b. 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 members 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 contends she was forced out of the military for filing a harassment complaint. However, there is no evidence and she provided no evidence to support this contention.
2. She contends it has been over 30 years since her discharge. However, the U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges. Each case is decided on its own merits when an applicant requests a change in discharge. Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.
3. The applicant's administrative separation action was accomplished in compliance with applicable regulations with no indication of procedural errors that would have jeopardized her rights. The type of discharge directed and the reasons were appropriate considering all the facts of the case.
4. Her record of service during her last enlistment included adverse counseling statements and two NJP's; therefore, her service did not meet the standards of acceptable conduct and performance of duty for Army personnel.
5. In view of the foregoing, there is an insufficient evidentiary 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) AR20120009806
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