IN THE CASE OF:	  

		BOARD DATE:	  9 July 2013

		DOCKET NUMBER:  AR20120022520 


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, in effect, an upgrade of her under other than honorable conditions discharge.

2.  The applicant states:

* she enlisted in the Army at an early age and she completed training at Fort Leonard Wood, MO
* she was sexually harassed on a continuing basis by her commander until the day she left Fort Leonard Wood
* she was again sexually harassed while stationed in Germany when an enlisted man tried to force her into an act of sexual relation
* she decided to put a stop to the harassment by pulling her sidearm and threatening the Soldier that if he did not back off she would kill him
* he went on his way and nothing else happened; she did not report this incident
* when she rotated back to Fort Hood, TX, she discovered the enlisted man had reported her pulling her sidearm on him
* she was investigated and asked about this and other incidents, but she was afraid to report sexual misconduct by higher officials for fear of reprisal
* 2 months after she refused to testify about the incidents in Germany, she was separated
* she tried on many occasions contacting the Department of Veterans Affairs (VA) for help, but she was told she was not entitled to benefits

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* VA Form 21-526b (Veteran's Supplemental Claim for Compensation), dated 23 November 2012
* Four letters of support/character reference letters

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 6 August 1982.  She completed basic training at Fort Leonard Wood and advanced individual training at Fort Lee, VA.  She was awarded military occupational specialty 76C (Equipment Records and Parts Specialist). 

3.  Her record shows she served in Germany from 29 December 1982 to 25 June 1984.  She was awarded or authorized the Army Service Ribbon, Overseas Service Ribbon, Army Achievement Medal with 1st oak leaf cluster, and Sharpshooter Marksmanship Qualification Badge with Rifle and Grenade Bars.

4.  On 8 April 1983, in Germany, she accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to her appointed place of duty.

5.  On 4 January 1985, at Fort Hood, she accepted NJP under the provisions of Article 15, UCMJ for wrongfully using marijuana.

6.  On 6 January 1985, she attempted suicide by ingesting various medications at her off-post quarters.  After an investigation by an investigating officer, her medical diagnosis was determined to be "Not in Line of Duty – Due to Own Misconduct."

7.  On 31 January 1985, also at Fort Hood, she accepted NJP under the provisions of Article 15, UCMJ for:

* wrongfully stealing two personal checks, the property of other Soldiers
* wrongfully drawing and uttering, with intent to defraud, personal checks, the property of other Soldiers
* conspiring to commit larceny of cash, the property of another Soldier
* willfully disobeying a lawful order from a superior commissioned officer

8.  The complete facts and circumstances surrounding her discharge are not available for review with this case.  However, her record contains:

	a.  DA Form 268 (Report For Suspension of favorable Personnel Actions (FLAG)), that shows an initial flagging action was initiated against her for pending separation. 

	b.  Orders 48-15, issued by Headquarters, 1st Cavalry Division, Fort Hood, dated 13 March 1985, ordering her discharge from the Army, effective 19 March 1985.

	c.  A memorandum, dated 19 March 1985, advising her that she had been discharged from the Army pursuant to Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12b, by reason of misconduct – pattern of misconduct.  The memorandum ordered her not to reenter the Fort Hood Military Reservation as her future presence presented a potential breach of order and discipline.

	d.  A DD Form 214 that shows she was discharged on 19 March 1985 under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct – pattern of misconduct in the rank/grade of private/E-1 with an under other than honorable conditions characterization of service.  The DD Form 214 shows she completed 2 years, 7 months, and 14 days of creditable active service.

9.  There is no indication she applied to the Army Discharge Review Board for an upgrade of her discharge within that board’s 15-year statute of limitations.

10.  She submitted four character reference letters from friends who describe her as a reliable, intelligent, and capable individual.  She is also described as a kind and a loving person who extends a hand to those in need.

11.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall 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 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. 

	c.  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 record is void of the complete facts and circumstances that led to her discharge.  However, her record contains a DD Form 214 that shows she was discharged on 19 March 1985 under the provisions of Army Regulation 635-200, paragraph 14-12b for misconduct – pattern of misconduct with an under other than honorable conditions discharge.

2.  Absent evidence to the contrary, it is presumed that all requirements of law and regulation were met and her rights were fully protected throughout the separation process.  It is also presumed that her discharge was appropriate because the quality of her service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.

3.  Her record reflects a period of service marred with misconduct that included failing to report to her appointed place of duty, wrongful use of illegal drugs, fraud, larceny, and theft.  Nothing in her record supports, and she provides no evidence to support, her contention that she was the subject of sexual harassment or sexual assault/misconduct.

4.  Based on her record of indiscipline, her service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders her service unsatisfactory.

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

6.  Additionally, the ABCMR does not grant requests for upgrade of 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/her discharge.  The granting of veteran's benefits is also not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for health care and other benefits should be addressed to the VA.

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)                                         AR20120022520



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ABCMR Record of Proceedings (cont)                                         AR20120022520



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