IN THE CASE OF: 

		BOARD DATE:	    20 December 2012

		DOCKET NUMBER:  AR20120011038 


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, in effect, she was excessively punished for her actions.  She was continuously harassed by another Soldier.  The harassment was so severe that she developed post-traumatic stress disorder (PTSD) and bipolar disorder.  She wants to be treated by the Department of Veterans Affairs (VA) medical center; however, she must have an honorable discharge.

3.  The applicant provides:

* VA Form 21-4138 (Statement of Claim), dated 8 May 2012
* Letter from the VA, dated 8 September 2010
* Letter from two Senators, dated 19 July 2011 and 21 June 2012
* Letter from her Congressional Representative, dated 14 September 2011
* Self-authored letter, dated 18 May 2012
* Divorce decree, dated 2 February 2010
* Two witness statements, dated 13 June and 30 September 2011

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 7 January 2002 and held military occupational specialty 63H (Tracked Vehicle Repairer).  She served in Kuwait/Iraq from 2 April through 2 September 2003.

3.  On 6 August 2003, court-martial charges were preferred against the applicant for one specification of committing an assault upon a male private (PVT) by pointing at him with a loaded firearm.

4.  On 8 August 2003, she consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge 	and the procedures and rights that were available to her.  Subsequent to receiving this legal counsel and without coercion, she voluntarily requested discharge under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 10, for the good of the service - in lieu of trial by court-martial.

5.  In this request for discharge, she indicated she understood that by requesting discharge, she was admitting guilt to the charge against her, or of a lesser included offense, that also authorized the imposition of a bad conduct or a dishonorable discharge.  She further acknowledged she understood that if her discharge request was approved, she could be deprived of many or all Army benefits, that she could be ineligible for many or all benefits administered by the VA, and that she could be deprived of her rights and benefits as a veteran under both Federal and State laws.  

6.  On 18 August 2003, the separation authority approved her request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial, with an under other than honorable conditions discharge and reduction to private (PV1)/E-1.  Accordingly, she was discharged on 18 September 2003.

7.  Her DD Form 214 (Certificate of Release of Discharge from Active Duty) shows she was discharged on 18 September 2003 in the rank/grade of PV1/E-1 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial.  She received an under other than honorable conditions discharge, a reentry (RE) code of 4, and a separation code of KFS.  This form further confirms she completed 1 year, 8 months, and 12 days of creditable active service.

8.  On 10 August 2009, the Army Discharge Revise Board (ADRB) considered her request to upgrade her discharge.  The ADRB determined that relief was warranted and voted to upgrade her characterization of service to general, under honorable condition.  Accordingly, she was issued a new DD Form 214 showing the upgraded characterization of service.

9.  She provided a VA 21-4138, dated 8 May 2012, wherein she stated when she applied to the ADRB for an upgrade of her characterization of service in 2009 she only requested an upgrade to general under honorable conditions.  At the time of her application the time the VA was only requiring a general discharge for the receipt of medical services.  During her ADRB appearance she was able to explain:

* the severe threats and harassment she received from a male PVT
* her consistent and repeated complaints to the command operations center (COC), military police, chaplain, and "mental sick call"
* nobody would help her and the harassment was escalating so she took the law into her own hands
* her first sergeant told her she was the scapegoat and if she did not take a chapter 10 the entire COC in Kuwait would be prosecuted

10.  She provided a VA letter, dated 8 September 2010, wherein it stated she was not eligible for VA benefits because her service was not honorable.

11.  She provided several letters exchanged between her and Congressional Representatives wherein she requested assistance and they responded.

12.  She provided two witness statements from Soldiers with whom she was deployed.  Both witness statements attested to the abuse, harassment, and threat the applicant described.  Both witness statement indicated her emotional and mental state began to deteriorate as a result of the abuse she incurred on a daily basis, and opined the abuse was the likely cause of her PTSD and bipolar disorder from which she now suffers.  In addition, both witnesses confirmed her contention that her chain of command neglected to intervene or take action on her behalf.

13.  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, 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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

14.  Army Regulation 635-200, paragraph 3-7a, states 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 member’s 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's contention that when nobody would help her and the harassment was escalating so she took the law into her own hands is noted; however, these reasons do not excuse her violation of military rules and regulations.

2.  Her record shows she was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  She voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and her rights were fully protected throughout the separation process.  

3.  Her service did not meet the standards of acceptable conduct and performance of duty for Army personnel and rendered her service unsatisfactory.

4.  The ABCMR does not upgrade discharges solely for the purpose of making the applicant eligible for veterans or other benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable discharge.

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)                                         AR20120011038



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ABCMR Record of Proceedings (cont)                                         AR20120011038



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