IN THE CASE OF:	  

		BOARD DATE:	    26 November 2013

		DOCKET NUMBER:  AR20130006434 


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 correction of her military record to show her gender as female; her correct date of birth; and her receipt of an honorable discharge instead of a general discharge (GD) under honorable conditions.

2.  The applicant states her record incorrectly shows she is a male instead of a female, the wrong DOB, and that she received a GD instead of an HD.

3.  The applicant provides:

* a copy of her DD Form 214 issued on 10 July and 19 September 2000
* Department of Veterans Affairs (VA) letter dated 25 July 2012

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's military record shows she was appointed a second lieutenant (2LT/O-1) in the aviation branch and entered active duty in the Regular Army on 3 June 1995.  She was promoted to first lieutenant/1LT on 3 June 1997 and to captain/O-3 on 1 July 1999.

3.  The Army Human Resource Command (AHRC), Soldier Management System, Integrated Web Services (IWS), shows that the applicant is a female and it also lists the DOB that she indicates is correct.  The applicant's officer record brief (ORB) also shows she is a female and lists the DOB that she indicates is correct.

4.  On 22 March 2000, a DD Form 458 (Charge Sheet) was prepared preferring charges against the applicant for violating the following articles of the Uniform Code of Military Justice (UCMJ):

* Article 125 – for committing sodomy with a Soldier in the rank of specialist (SPC/E-4)
* Article 133 – for conduct unbecoming an officer
* Article 134 (7 specifications) –

* wrongfully having sexual intercourse with a private first class (PFC/
E-3), not her husband 
* wrongfully having sexual intercourse with an SPC, not her husband
* for twice wrongfully and unlawfully subscribing under oath, false statements indicating a Soldier in the rank of SPC twice attempted to rape her
* knowingly fraternizing with a sergeant (SGT/E-5) on terms of military equality and frequenting night clubs and bars with this Soldier
* twice knowingly fraternizing with a SPC on terms of military equality by borrowing $20.00 to buy a bracelet and taking him to lunch on a separate occasion

5.  On 29 March 2000, the applicant submitted a request for resignation from the Army under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), chapter 3, paragraph 3-13, for the good of the service in lieu of trial by court-martial.  In her request, she stated she was not coerced into submitting her resignation and indicated she had been advised of and fully understood the implications of her actions.  Prior to submitting her resignation she acknowledged her option to consult with and be represented by counsel and stated she was fully advised by a member of the Judge Advocate General's Corps in this matter.

6.  On 30 May 2000, the Acting Deputy Assistant Secretary of the Army for Manpower and Reserve Affairs (Army Review Boards) accepted the applicant's resignation and directed that she be issued an under other than honorable conditions (UOTHC) discharge.  On 10 July 2000, she was discharged from active duty.

7.  The DD Form 214 she was issued shows she completed a total of 5 years, 1 month, and 8 days of active military service.  It also shows that she was honorably discharged under the provisions of paragraph 3-13, Army Regulation 600-8-24, in lieu of trial by court-martial.

8.  On 25 July 2000, the Chief, Transition Center, Fort Campbell, Kentucky issued a memorandum to the Commander National Archives and Records Administration, St. Louis, Missouri.  He requested the applicant be issued a DD Form 215 (Correction to the DD Form 214) to show she received a UOTHC discharge.  He also forwarded the applicant a copy of this memorandum.

9.  On 19 September 2000, the U.S. Army Reserve Personnel Command 
(AR-PERSCOM), administratively issued the applicant a new DD Form 214.  Item 24 (Character of Service) of this document contains the entry "Under Honorable Conditions (General)."

10.  On 27 September 2000, AR-PERSCOM issued the applicant another DD Form 214 which includes the entry "Under Other Than Honorable Conditions."  Item 18 (Remarks) includes the entry "This DD Form 214 supersedes and voids the DD Form 214 issued 20000710 and 20000919."

11.  On 24 August 2001, after having carefully reviewed the applicant's record and the issues she presented, the Army Discharge Review Board concluded the applicant's discharge was proper and equitable and voted to deny her request for an upgrade.

12.  Army Regulation 600-8-24 states that:

	a.  an officer may submit a resignation for the good of the service (RFGOS) in lieu of a general court-martial (GCM) when court-martial charges have been preferred against the officer with a view toward trial by GCM or the officer is under a suspended sentence of dismissal;

	b.  the tender of an RFGOS does not preclude or suspend procedures.  A convening authority will not, however, take action on the findings and sentence in such cases until the Secretary of the Army or designee has acted on the RFGOS;

	c.  the officer under court-martial charges or under investigation with a view toward court-martial will be retained on active duty until final disposition of the charges or investigation or until the officer's RFGOS is approved;

	d.  the commander will ensure the RFGOS is voluntary and that applicants are provided the opportunity to consult with legally-qualified counsel who is a member of the Judge Advocate General's Corps or a civilian counsel retained by the officer at his/her own expense and allowed a reasonable period of time to consider requesting an RFGOS;

	e.  an RFGOS will be expeditiously processed.  Court-martial proceedings may be continued until action by the convening authority on the findings and sentence of the court.  A convening authority will not take action in a case until the Secretary of the Army or designee acts on the RFGOS; and

	f.  an officer separated under this paragraph normally receives a characterization of service of under other than honorable conditions.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her record should be corrected to show her gender as female and her correct DOB.  The evidence of record clearly documents her "female" gender and the DOB that she claims is correct.  Therefore, no corrective action is required on this portion of her claim.

2.  The applicant's voluntary resignation in lieu of trial by court-martial was accomplished in compliance with applicable regulations with no indication of procedural errors which would to jeopardize her rights.  The applicant's repetitive misconduct completely diminished the character of her service below that warranting a fully HD or GD.

3.  The evidence of record shows the DD Form 214 issued the applicant upon her discharge erroneously listed her characterization of service as honorable.  Fifteen days later, the Chief, Transition Center, promptly notified the appropriate AR-PERSCOM staff of this mistake and requested the applicant be issued a UOTHC discharge.  The AR-PERSCOM staff likewise mistakenly issued the applicant a DD Form 214 showing she received a GD on 19 September 2000.  However, eight days later on 27 September 2000, that office ultimately issued the applicant a final DD Form 214, showing she received a UOTHC discharge.  Further, this final separation document superseded the previously-issued 10 July and 19 September 2010 DD Forms 214.

4.  In view of the forgoing, the applicant's request should be denied.

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 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)                                         AR20130006434



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ABCMR Record of Proceedings (cont)                                         AR20130006434



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