IN THE CASE OF:	  

		BOARD DATE:	  2 July 2014

		DOCKET NUMBER:  AR20130018541 


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 to medical or honorable. 

2.  The applicant states:

* a situation occurred while she was on active duty that caused her to leave in fear for her life
* she was forced to leave because of the death of a first sergeant; she was forced into the psych unit at Fort Gordon, GA hospital after his murder; her medical records have been lost
* while at Fort Gordon, she was sexually harassed by the first sergeant and she reported the incident to the company commander who ignored it
* she told her boyfriend at the time; the next morning, she was told her boyfriend had killed the first sergeant
* the company commander in effect blamed her for his death and told her if she had kept her mouth shut, he would be alive
* because she was out of control and afraid, she was placed in the psych ward at Fort Gordon
* after her release from the psych ward, she was not offered a medical discharge 
* every morning she was reminded by the company commander that the first sergeant's death was her fault
* she had nowhere to turn; so, she ran for her life because she felt her life was threatened


3.  The applicant provides:

* letters of appreciation and/or commendation
* certificate of completion of a leadership course
* multiple letters of support from relatives

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 records show she enlisted in the Regular Army on 20 June 1978 and she held military occupational specialty 93P (Aviation Operation Specialist). 

3.  She served in Korea from 17 January 1980 to 15 January 1981.  She was awarded or authorized the Army Service Ribbon, Overseas Service Ribbon, Expert Marksmanship Qualification Badge with Grenade Bar, and Marksman Marksmanship Qualification Badge with Rifle Bar. 

4.  On 6 October 1981, she departed her Fort Gordon unit in an absent without leave (AWOL) status but she returned to military control on 8 October 1981. 

5.  On 10 October 1981, she again departed her Fort Gordon unit in an AWOL status but she returned to military control on 13 October 1981.  

6.  On 18 October 1981, she departed her Fort Gordon unit in an AWOL status a third time but she returned to military control on 19 October 1981.

7.  On 21 October 1981, she accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL on three separate occasions.  She was reduced to private first class/E-3. 

8.  On 4 November 1981, she departed her unit an AWOL status a fourth time, and on 4 December 1981, she was dropped from the rolls as a deserter.  

9.  According to a memorandum from the Chief, Military Justice, Fort Gordon Signal Center, the applicant was to have been a material witness and perhaps even an accomplice in a premeditated murder which was prosecuted at Fort Gordon in January 1982.  The memorandum further states:

	a.  Due to her involvement with the accused at the time, who was found guilty of premeditated murder, and the relationship between her AWOL and the military's exercise of jurisdiction in this case, there is little doubt that the AWOL was for the express purpose of avoiding testimony against the accused. 

	b.  It should be noted that the applicant was residing with the accused at the time of the murder, and the victim was her first sergeant.  The motive arose from the first sergeant's implementation of existing orders that the applicant move out her off-post residence and move back into the barracks.  Accordingly, the applicant is not a run-of-mill AWOL Soldier and should not be so treated by any installation at which she may eventually surrender.  

10.  She was apprehended by civil authorities at Newport News, VA on 7 March 1993 and returned to military control on that date. 

11.  On 11 March 1993, court-martial charges were preferred against her for one specification of AWOL from 4 November 1981 to 7 March 1993.  

12.  On 11 March 1993, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights available to her.  Following consultation with legal counsel, she requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  In her request for discharge, she indicated/acknowledged:

* she was making the request of her own free will and she had not been subjected to any coercion whatsoever by any person
* she did not desire any further rehabilitation under any circumstances because she had no desire to perform further service
* she understood that by requesting discharge she was admitting guilt to the charge against her or to a lesser-included offense that also authorized the imposition of a bad conduct or an under other honorable conditions discharge
* understood if her request for discharge was accepted, she could be discharged under other than honorable conditions
* acknowledged she understood if her discharge request was approved she could be deprived of many or all Army benefits and she could be ineligible for many or all benefits administered by the Department of Veterans Affairs
* acknowledged she could be deprived of her rights and benefits as a veteran under both Federal and State laws
* elected not to submit a statement in her own behalf 

13.  On 31 March 1993, her immediate and intermediate commanders recommended approval with the issuance of an under other than honorable conditions characterization of service.  Each indicated the applicant's conduct rendered her triable by a court-martial under circumstances that could lead to a bad conduct or a dishonorable discharge.  Punishment can be expected to have minimal rehabilitative effect.   

14.  On 6 April 1993, consistent with the applicant's chain of command's recommendations, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by a court-martial.  He directed the applicant be reduced to the lowest enlisted grade (if applicable) and her service be characterized as under other than honorable conditions.  On 26 April 1993, the applicant was accordingly discharged.

15.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) she was issued shows she was discharged under the provisions of Army Regulation 635-200, chapter 10, in the rank/grade of private/E-1 with a character of service of under other than honorable conditions.  This form further shows she completed 3 years, 5 months, and 22 days of creditable active service with multiple periods of lost time. 

16.  There is no indication she petitioned the Army Discharge Review Board for an upgrade of her discharge within that board's 15-years statute of limitations.

17.  She provides:

	a.  Multiple letters of commendation and/or appreciations recognizing her performance and accomplishments during her military service. 

	b.  Multiple letters of support from relatives, authored in 2013.  The authors indicate the applicant encountered several challenges with her unit first sergeant and she became isolated and distressed after his death. 

18.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It states:

	a.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

	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. 

19.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of her office, grade, rank, or rating.  It provides for medical evaluation boards (MEB) which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501, chapter 3.  

	a.  If an MEB determines a Soldier does not meet retention standards, the case will be referred to a physical evaluation board (PEB).  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  It also investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  It evaluates the physical condition of the Soldier against the physical requirements of the 
Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

	b.  The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of her office, rank, grade or rating.  The Army must find that a service member is physically unfit to reasonably perform her duties and assign an appropriate disability rating before that service member can be medically separated or retired.

	c.  Chapter 3 states disability compensation is not an entitlement acquired by reason of service incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

	d.  Chapter 4 states that a member who is charged with an offense for which she could be dismissed or given a punitive discharge may not be referred for physical disability processing.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her discharge should be upgraded to an honorable discharge or separation by medical disqualification.  She appears to confuse the characterization of service with the narrative reason for separation.  

	a.  The characterization of service is determined by the directive authorizing the separation and must be one of the following: honorable, under honorable conditions (general), under other than honorable conditions, bad conduct, dishonorable, dismissed, or uncharacterized.  

	b.  The narrative reason for separation on the other hand is based on the statutory, regulatory, or other authority.  Examples of reasons for separation are parenthood, hardship, disability (i.e., medical), misconduct, completion of required service, unsatisfactory performance, in lieu of trial by court-martial, etc.

2.  With respect to her character of service: 

	a.  The applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing requested a discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and her rights were fully protected throughout the separation process.  Furthermore, her discharge accurately reflects her overall record of service.

	b.  The applicant had an extensive history of AWOL and she was a deserter.  Upon apprehension by authorities (vice voluntary surrender) not only did she admit to her AWOL, she requested a voluntary discharge to avoid trial by court-martial.  She could have elected trial by a court-martial if she believed she was innocent of the charges.  Likewise, she could have at least elected to submit a statement of the issues she now describes, with her voluntary request for discharge.

	c.  There is no evidence in the applicant's records and she provides none to support her contention that she was harassed by the unit first sergeant or that such harassment led to her extensive AWOL. 

	d.  Based on her record of indiscipline, her service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered her service unsatisfactory.  In view of the foregoing, she is not entitled to a general or an honorable discharge. 

3.  With respect to the narrative reason for separation - medical - properly known as "disability:"

	a.  The applicant was not discharged because of any medical condition.  She was discharged because she chose to go AWOL, not once or twice but multiple times, and extensively.  First she was punished for being AWOL but that did not rehabilitate her.  She then went AWOL for several years and when she was apprehended she elected not to face a court-martial.  She chose the voluntary discharge.  She was counseled and was fully aware of the implications of her actions. 

	b.  Medical disability processing is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform soldierly duties because of a physical disability incurred or aggravated in service.  The applicant's service was not interrupted by a medical or a mental condition.  It was interrupted by her choice to go AWOL and subsequent choice to be discharged and decline medical and mental examinations at the time of her separation.  

	c.  More importantly, since she was charged with offenses for which she could be given a punitive discharge (emphasis added), she was not eligible for disability processing, even if she did have a medical or mental condition that failed retention standards and determined to be unfitting. 

4.  After a comprehensive review of available evidence and the documentation she submitted, it is clear she is not entitled to the requested relief. 

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)                                         AR20130018541



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ABCMR Record of Proceedings (cont)                                         AR20130018541



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