IN THE CASE OF:	

		BOARD DATE:	  16 April 2014

		DOCKET NUMBER:  AR20130014921 


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 discharge under other than honorable conditions to honorable.

2.  The applicant states that two very minor non-violent offenses do not constitute a pattern of violence.  During her court-martial, the jury of commissioned officers failed to see the dilemma that caused her violent response to an attack.  She was a young immature adult who was misunderstood and misjudged; however, through hard work and diligence she became a successful citizen.

	a.  She was punished for two minor non-violent offenses.  She failed to clean a chalk board and did not open the door for her roommate.

	b.  When she was stationed in Germany she made friends with a homosexual male Soldier who was married.  He was paranoid about people finding out about his homosexuality because it was not permitted in the Armed Forces.  He had a male roommate who was heterosexual.  She spent a lot of her time with these two individuals.  A female staff sergeant (SSG) in her unit stopped by her room to ask her to babysit.  She agreed and as they were discussing the details, the homosexual Soldier saw them talking.  In retrospect, it appears he thought she was discussing his homosexuality with a noncommissioned officer (NCO) and he became upset.  Later that evening she went to his room to visit his roommate.  She knocked on the door and was invited in by his roommate; however, as soon as she entered the room, the homosexual Soldier jumped up and ran over to her shouting, "get out."  At the same time he started body slamming her into a wall locker.  She was knocked to the floor and saw an empty case of beer bottles.  She grabbed one on her way back up and hit him in the head with the bottle.  Blood started going everywhere.  The hit was enough to make him stop attacking her and it gave her the opportunity she needed to escape.

	c.  Since her discharge she earned a master's degree, worked as a teacher, and has been active in the church.  She has become a productive and successful member of the community.  The worst offenses she had on her record are traffic infractions for speeding.

3.  The applicant provides:

* self-authored-statement, undated
* diploma, 26 January 1979
* certificate of completion, dated 20 December 1979
* student performance report, dated 18 March 1980
* certificate, dated 18 March 1980
* certificate of award, dated 29 March 1980
* certificate of completion for basic combat training, dated 2 February 1982
* certificate of completion for advanced individual training, dated September 1983
* DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 23 March 1982
* DA Form 2627, dated 14 March 1983
* letter, dated 15 March 1983
* statement/letter of appreciation, dated 16 March 1983
* letter of appreciation, dated 23 March 1983
* two letters of appreciation, dated 11 April 1983
* letter of appreciation, dated 25 July 1983
* letter of appreciation, dated 4 August 1983
* three memoranda, undated
* memorandum, dated 19 June 1984
* DA Form 3081-R (Periodic Medical Examination), dated 21 June 1984
* memorandum, dated 27 June 1984
* memorandum, dated 28 June 1984
* DA Form 2-2 (Record of Court-Martial Convictions)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* numerous degrees, professional certifications, certificates, letters from employers, letters of recommendation, letters of appreciation, and her résumé


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 20 October 1981 and she held military occupational specialty 73C (Finance Specialist).  The highest rank/grade she attained while serving on active duty was private first class/E-3.

3.  Her DA Form 2-1 (Personnel Qualification Record – Part II) shows she was assigned to:

* Fort Jackson, SC, for basic combat training from 29 October to 23 November 1981
* Fort Benjamin Harrison, IN, for advanced individual training from 22 February to 30 March 1982
* Fort Meade, MD, as a finance specialist from 13 April 1982 to 28 September 1983
* Germany as a pay specialist from 3 November 1983 to 1 March 1984
* Germany as a confined trainee from 2 to 21 March 1984
* Fort Riley, KS, as a confined trainee from 22 March to 3 July 1984

4.  On 23 March 1982, she accepted nonjudicial punishment (NJP) under the provisions Article 15 of the UCMJ for two instances of disobeying a lawful order from an NCO to go stand in the back of the classroom and clean off the chalk board.

5.  Her records contain a DA Form 4465 (Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) Client Intake Record), dated 20 October 1982, which shows her commander directed her to enroll in Track I of the ADAPCP for bio-chemicals.  The applicant indicated she had used cannabis 1-6 months prior to admission, typically used cannabis once a month, her cannabis use began prior to service, and her cannabis use was currently a problem.

6.  Her records contain a DA Form 4466 (ADAPCP Client Progress Record), dated 15 December 1982, which shows she successfully completed ADAPCP and was released from the program.

7.  On 14 March 1983, she accepted NJP under the provisions of Article 15 of the UCMJ for disobeying the lawful command of a commissioned officer to open the door to her room.

8.  Her records contain a DA Form 4430-R (Report of Result of Trial) which shows she was tried by a special court-martial on 2 March 1984 and convicted of aggravated assault.  She was sentenced to reduction to private/E-1, confinement at hard labor for 5 months, and forfeiture of $397.00 pay per month for 6 months. 
Her sentence was adjudged on 2 March 1984.

9.  42nd Field Artillery Brigade, Germany, Special Court-Martial Order Number 2, dated 11 May 1984, approved the sentence as adjudged and ordered it duly executed.

10.  She provided an undated memorandum issued by her commander wherein her commander stated he was initiating separation action against her for misconduct under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b.  He stated her pattern of misconduct as reflected by her adverse disciplinary history, the serious nature of her court-martial offense, and her poor conduct while enrolled in a closely-monitored correctional training program reflected little potential for future productive retention or advancement within the military.

11.  She provided an undated memorandum issued by her commander which shows he recommended her discharge from military service under the provisions of Army Regulation 635-200, chapter 14, for misconduct and recommended a waiver of further rehabilitation efforts.

12.  She provided an indorsement to a memorandum, dated 21 June 1984, which shows she had been advised by her commander and consulting counsel of the basis for the contemplated action to separate for misconduct under the provisions of Army Regulation 635-200, chapter 14, and its effects, the rights available to her, and the effects of any action taken by her in waiving her rights.  She waived consideration of her case by a board of officers and a personal appearance before a board of officers.  She indicated she submitted statements in her own behalf (not provided) and waived representation by counsel.  She acknowledged she understood she could expect to encounter substantial prejudice in civilian life if she were issued a less than fully honorable discharge.  She further acknowledged she understood that she could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of a discharge under other than honorable conditions.

13.  She provided an indorsement to a memorandum from the Staff Judge Advocate (SJA), dated 27 June 1984, which stated her chain of command recommended her separation in accordance with Army Regulation 635-200, her separation packet was legally sufficient, she waived her right to a board, and the SJA recommended approval of the separation and issuance of a discharge under other than honorable conditions.

14.  She provided an indorsement to a memorandum, dated 28 June 1984, which shows the separation authority waived further rehabilitative efforts and approved the applicant's discharge for misconduct under the provisions of Army Regulation 635-200, chapter 14, and directed the issuance of an Under Other than Honorable Conditions Discharge Certificate.

15.  Her DD Form 214 shows she was discharged on 3 July 1984 under the provisions of Army Regulation 635-200, paragraph 14-12b, for "misconduct – a pattern of misconduct."  She completed 2 years, 4 months, and 11 days of net active service of which 4 months and 1 day were credited as foreign service.  She accrued 123 days of lost time due to imprisonment.  Her service was characterized as under other than honorable conditions.

16.  There is no indication she applied to the Army Discharge Review Board for an upgrade of her discharge within its 15-year statute of limitations.

17.  Army Regulation 635-200 sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.

	a.  Paragraph 14-12b, in effect at the time, established policy and prescribed procedures for separating personnel for misconduct.  Soldiers were subject to separation under this paragraph for a pattern of misconduct consisting of discreditable involvement with civil or military authorities and conduct prejudicial to good order and discipline.  Discreditable conduct and conduct prejudicial to good order and discipline includes conduct violative of the accepted standards of personal conduct found in the UCMJ, Army regulations, the civil law, and time-honored customs and traditions of the Army.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  


	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 available evidence confirms that all requirements of law and regulation were met and the applicant's rights were fully protected throughout the separation process.  The records further show her discharge accurately reflects her overall record of service.  Additionally, her records include an extensive history of misconduct.

	a.  Her records show she accepted NJP under the provisions of Article 15 of the UCMJ.  She stated the first NJP was for failing to clean a chalk board and the second was for not opening the door for her roommate.  However, the evidence of record shows she accepted the first NJP for disobeying the orders of an NCO, the first to go stand in the back of a classroom and the second to clean a chalkboard.  The second instance of NJP was for refusing to open the door to her room upon the command of a commissioned officer.  While these infractions seems simple and insignificant to the applicant, her refusal to obey the direct orders and commands of the NCO's and commissioned officers appointed above her shows she had no respect for military authority.  Additionally, failing to obey orders and commands is a form of misconduct and a punishable and serious offense.

	b.  She was referred to ADAPCP by her commander for drug use and she admitted to using cannabis in her intake form.  Drug use is not permitted in the military and is considered misconduct.

	c.  Her military records show she was convicted by a special court-martial of aggravated assault.  Her records do not contain any document outlining the particulars of the situation which resulted in the assault.  The statements she made concerning why she was convicted of assault constitute her argument, but not evidence.  She has not provided any evidence to clearly show she was unjustly convicted of aggravated assault.  As such, the ABCMR must presume regularity.  Aggravated assault is a punishable offense and a form of misconduct.

	d.  Lastly, she provided evidence showing she conducted herself poorly while enrolled in a closely-monitored correctional training program.

2.  Based on her record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered her service unsatisfactory.  Therefore, she is not entitled to a general or 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 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)                                         AR20130014921



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ABCMR Record of Proceedings (cont)                                         AR20130014921



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