IN THE CASE OF:	  

		BOARD DATE:	  5 June 2014

		DOCKET NUMBER:  AR20130016715 


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) to an honorable discharge (HD).

2.  The applicant states her discharge is unjust because she requested it while affected with undiagnosed post-traumatic stress disorder (PTSD).  Her PTSD was caused by "military sexual trauma."  There was no way for her to continue to serve honorably in light of the fact that her command did nothing about this attack.  

3.  The applicant provides copies of a Department of Veterans Affairs (VA) rating decision and her initial PTSD evaluation.

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 service medical are on permanent loan to the VA and are not available for review.

3.  The applicant enlisted in the Regular Army on 6 November 1979, completed training, and was awarded military occupational specialty 75C (Personnel Management Specialist).

4.  The applicant was assigned to duty in Korea on 1 October 1981.

5.  On 18 March 1982, the applicant's command was notified by three physicians that they considered the applicant to have been abusing her medical sick call privileges over the proceeding four months and that some of her medical treatment records had mysteriously disappeared from her medical file.  Additionally, she was reported as being very disrespectful and rude to medical personnel, disrupting the normal functioning of the medical facility.

6.  On 5 May 1982, the applicant was counseled for failure to go to her place of duty.

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

* 22 April 1982, for abuse of medical sick call privileges
* 17 May 1982, for failure to go to her place of duty

8.  The applicant was afforded a mental status evaluation on 19 May 1982.  The reporting physician found no mental illness or disease, although it was noted that the applicant was suffering from significant stress that interfered with her performance of her duties.  It was reported that the applicant was desirous of being discharged and it would be in the best interest to the military to grant her a discharge.

9.  On 24 May 1982, after consulting with counsel, the applicant acknowledged the proposed separation and voluntarily consented to the separation.  She acknowledged she had been advised of and understood her rights, that if her service was characterized as general under honorable conditions she could expect to experience substantial prejudice in civilian life, that there is no automatic review or upgrading of her discharge, and she could not apply for reenlistment for two years.  She elected not to provide a statement on her own behalf. 


10.  The discharge authority approved the separation directing the applicant be released from active duty with a general (under honorable conditions) characterization of service and that she be transferred to U.S. Army Reserve (Individual Ready Reserve) to complete her period of obligated service.

11.  On 9 June 1982, the applicant was released from active duty with a GD under Army Regulation 635-200, paragraph 5-31(h), Expeditious Discharge Program (EDP).  She had 2 years, 7 months, and 4 days of creditable service with no lost time.

12.  On 27 April 2010, the VA awarded the applicant a 30 percent disability evaluation for PTSD based on her reporting having been sexual assaulted by a sergeant shortly after arriving in Korea.

13.  There is no indication the applicant applied for review of her discharge by the Army Discharge Review Board within its 15-year statutory limit.

14.  Army Regulation 635-200 provides the policy and sets forth the procedure for administrative separation of enlisted personnel.  It provides the following:

   a.  Paragraph 3-7a states an honorable discharge (HD) is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty.  

	b.  Paragraph 3-7b states a general discharge (GD) is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge. 
   
   c.  Chapter 5, as then in effect, provided for the EDP.  This program provided that an individual who had completed at least 6 months, but less than 36 months, of active duty and who demonstrated (by poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally or failure to demonstrate promotion potential) that he or she could not or would not meet acceptable standards could be separated.  Such personnel were issued a general or honorable discharge, as appropriate, except that a recommendation for a general discharge had to be initiated by the immediate commander and the individual had to consult with legal counsel. 


DISCUSSION AND CONCLUSIONS:

1.  The applicant was seen by medical professionals for a number of months until it was medically determined that she was abusing the sick call privileges.  She was afforded a mental health examination that did not find or report any mental or psychiatric abnormalities. 

2.  Notwithstanding the fact that the VA granted the applicant disability benefits for PTSD 28 years after her release from active duty, the record does not contain and the applicant has not provided any evidence to show an assault.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

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)                                         AR20130016715



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ABCMR Record of Proceedings (cont)                                         AR20130016715



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