IN THE CASE OF: 

		BOARD DATE:	    1 May 2014

		DOCKET NUMBER:  AR20130015308 


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 under other than honorable conditions discharge
* correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show the date of discharge as October 1992

2.  The applicant states the dates shown on her DD Form 214 are incorrect.  It should show her discharge in October 1992.  The Department of Veterans Affairs (VA) states that she should have another DD Form 214.  As of today, she is being treated for severe chronic migraines and military sexual trauma (MST) from the VA hospital.  She would like the discharge upgraded due to experiencing MST from 1990 to 1994, the entire service time. 

3.  The applicant does not provide any evidence. 

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 available records show she enlisted in the Army National Guard (ARNG) on 24 September 1990.  Her enlistment contract is not available for review with this case. 

3.  The available records also show she entered active duty for training (ADT) on 12 October 1990 and completed training for military occupational specialty 76C (Equipment Record and Parts Specialist).  

4.  She was released from ADT on 30 April 1991.  Her DD Form 214 for this period of service shows she completed 6 months and 11 days of active service.  

5.  On 8 October 1992, she submitted a DD Form 368 (Request for Discharge or Clearance from Reserve Component) wherein she indicated her intent to enlist in the Regular Army (RA). 

6.  She enlisted in the RA for 3 years on 8 October 1992.  She was subsequently reassigned to Fort Lewis, WA.  

7.  While at Fort Lewis, she was frequently counseled by members of her chain of command for various infractions including: 

* multiple notifications of dishonored checks
* failing to be at her appointed place of duty
* un-securing her weapon
* losing her protective mask

8.  On 10 May 1993, her immediate commander initiated a Bar to Reenlistment Certificate against her citing her history of having dishonored checks.  He stated the applicant's pattern of misconduct in dealing with her financial matters could no longer be tolerated.  Her apathetic attitude and professional bearing are not those of a Soldier who should be retained in the Army.  She had demonstrated no potential for continued service.  

9.  The applicant was furnished with a copy of this bar and she elected to submit a statement on her own behalf.  Her statement is not available for review.  The bar was ultimately approved by the approval authority on 25 May 1993. 

10.  On 4 January 1994, she departed her unit in an absent without leave (AWOL) status but she returned to military control on 6 January 1994. 
11.  The complete facts and circumstances surrounding her discharge are not available for review with this case.  However, her records contain:  

	a.  memorandum, dated 18 October 1993, issued by Headquarters, I Corps and Fort Lewis, Fort Lewis, WA, appointing an administrative separation board.  Multiple names are listed on this memorandum. 

	b.  Memorandum, dated 8 February 1994, from the Commanding General, I Corps, Fort Lewis, to the applicant's battalion commander informing him that the applicant is designated as a respondent before an administrative separation board that will consider whether she should be separated from the Army for misconduct - commission of a serious offense in accordance with paragraph    14-12c of Army Regulation 635-200 (Personnel Separations). 

	c.  Memorandum, dated 28 April 1994, from the applicant to the Commanding General, I Corps, Fort Lewis, wherein she unconditionally and voluntarily waived her right to an administrative separation board.  In this memorandum, the applicant stated she consulted with legal counsel and was advised of the basis for the contemplated separation action for misconduct, the type of discharge she could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to her.  She acknowledged she:

* understood she could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to her
* understood 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

   d.  An expulsion order issued by the Commanding General, I Corps, Fort Lewis, WA on 28 April 1994, and acknowledged by the applicant, barring her from reentering the Fort Lewis reservation and surrounding military facilities. 

	e.  Orders 70-2, issued by Headquarters, I Corps, Fort Lewis, WA, ordering her transfer to the U.S. Army Transition Point for separation outprocessing effective 16 May 1994.  

12.  She was discharged on 16 May 1994.  Her DD Form 214 shows she was discharged under the provisions of paragraph 14-12c of Army Regulation        635-200 by reason of misconduct with an under other than honorable conditions characterization of service.  She completed 1 year, 7 months, and 7 days of active service during this period with 2 days of lost time and she was credited with 6 months and 11 days of prior active service. 

13.  On 23 January 2008, the Army Discharge Review Board reviewed her discharge but found it proper and equitable.  Accordingly, the ADRB denied her petition for an upgrade of her discharge. 

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes 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 is will be taken to separate a member for misconduct when it was clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. 

	a.  Paragraph 3-7a of Army Regulation 635-200 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.

	b.  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.  

15.  Army Regulation 635-5 prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  In establishes standardized policy for the preparation of the DD Form 214.  The DD Form 214 is a synopsis of the Soldier's most recent period of continuous active service

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 properly-constituted DD Form 214 that shows she was discharged on 16 May 1994 under the provisions of chapter 14 of Army Regulation 635-200 for misconduct-commission of a serious offense 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.  Her misconduct and failure to respond positively to counseling by members of her chain of command diminished the quality of her service. 

3.  Her service records do not contain and she did not provide any MP reports or CID ROI or any other documents confirming the sexual assault.  Likewise, there are no service medical records and she provides none confirming she was subjected to such assault and/or was seen by medical authorities. 

4.  Based on her misconduct, the applicant's service was not satisfactory and insufficiently meritorious to warrant an honorable discharge.  Therefore, she is not entitled to the requested relief.

5.  She previously completed 6 months and 11 days of active service when she was a member of the ARNG.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  Her periods of active duty were not continuous.  She was issued an appropriate DD Form 214 for each period of active service.  

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)                                         AR20130015308





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ABCMR Record of Proceedings (cont)                                         AR20130015308



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