BOARD DATE:	  6 August 2013

		DOCKET NUMBER:  AR20130001416 


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 an upgrade of her general discharge (GD).

2.  The applicant states she was raped by a noncommissioned officer member of her unit.  The incident was reported to police and there was a court-martial.  Afterward she was treated very poorly and made to move to another unit.  At the time she was very young and alone, felt violated, and was being treated poorly.  When she was given the opportunity to stay in the Army or go home she chose to go home.  She has let this go on for a long time because she didn't want to relive the situation.  She is now 41 years old, has changed her life, and deserves an upgrade.

3.  The applicant provides a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 July 1989, completed training, and was awarded military occupational specialty 76Y (Unit Supply Specialist).  Her initial duty assignment was the 520th Personnel Service Company, Baumholder, Germany.

3.  The available record contains no documentation of her rape, any involvement in a court-martial action, or that she served with any unit other than her initial duty assignment in Germany.

4.  The record contains six negative counseling statements dated between 12 December 1989 and 31 August 1990 for infractions including being absent from her place of duty, being drunk and disorderly, having a male in her room after visiting hours, failure to properly maintain the cleanliness of her room, disrespectful language toward an NCO, and failure to follow orders.

5.  On 19 September 1990, the applicant was involved in an altercation at the NCO Club wherein she was investigated for assault and damaging private property.  She received an oral and a written reprimand for her part in this incident. 

6.  The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice on:

	a.  20 September 1990, for failure to go to her place of duty, disrespectful deportment toward an NCO; disrespectful language toward an NCO; and failure to obey a lawful order from an NCO (two specification); and

	b.  16 October 1990, for failure to go to her place of duty. 

7.  The applicant was afforded a physical and a mental health evaluation.  Neither evaluation found any disqualifying abnormalities and neither referenced or alluded to a rape.  

8.  On 27 February 1991, her unit commander initiated separation action under Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12b (minor disciplinary infractions or a pattern of misconduct).

9.  On 27 February 1991, after consulting with counsel, the applicant acknowledged the separation action and stated she would provide her election within 7 days.  
10.  On 28 February 1991, she completed the second endorsement form wherein she requested her case be heard by an administrative separation board, that she be present with counsel if she was to be recommended for an under other than honorable conditions discharge.  She waived her right to provide a personal statement. 

11.  The separation authority approved the discharge recommendation and directed the applicant receive a GD.

12.  The applicant was discharged with a GD on 3 April 1991.  She had 1 year, 8 months, and 28 days of creditable service with no lost time.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It provides the following at: 

	a.  Paragraph 3-7a, 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 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.

	b.  Paragraph 3-7b, 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.  

	c.  Paragraph 14-12b, Soldiers are subject to discharge when they display a pattern of misconduct consisting of discreditable involvement with civil or military authorities or discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct. 

DISCUSSION AND CONCLUSIONS:

1.  The lack of any evidence in the applicant's official military records of the alleged rape, unit transfer, and/or any disciplinary actions taken in concert with that incident does not in-and-of itself discount the applicant's allegation of having been raped. 

2.  However, unfortunately, she has not provided any documentation of the incident or evidence to show that this led to her misconduct.

3.  The applicant received two NJP's and six negative counseling statements for diverse misconduct.  It is these factors that prompted her command to initiate separation actions.  

4.  Neither the passage of time nor good citizenship in and of themselves are sufficient mitigating factors to warrant an upgrade of his discharge.

5.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The type and character of the discharge is commensurate with her overall record.

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)                                         AR20130001416





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ABCMR Record of Proceedings (cont)                                         AR20130001416



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