IN THE CASE OF:  	  

		BOARD DATE:  15 January 2015	  

		DOCKET NUMBER:  AR20140008502 


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.

2.  The applicant states 30 years ago, she was a young woman in the Army.  She did well until she was stalked.  She reported this to her chain of command but was basically ignored.  The person stalking her found her one night and hurt her. She was put on profile and the chaplain was brought in to talk to her with the person who hurt her.  She was scared and nothing happened to this person; so, she went absent without leave (AWOL).  She tried several times to get someone to listen to her to no avail.  Now, she knows that was not the right decision to make but she was 19 years old and scared.  After 2 years she turned herself in at Fort Bragg, NC.  She was told she could get an under other than honorable conditions discharge.  Not knowing any better, she took it because she just wanted things to be over.  Now it is 30 years later and she is a grandmother who has her own business and would like to take care of this.  She feels that if someone had helped her, she would not have left.  She had been doing well, up to that point, and really liked being in the service. 

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Multiple letters of commendation and/or appreciation
* Multiple certificates of training and/or achievement
* Safety card

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 was born in November 1962 and enlisted in the Regular Army at age 19, on 31 March 1981.  She was trained in and held military occupational specialty 64C (Motor Transport Operator).

3.  She received multiple letters and/or certificates of commendation and appreciation and she completed several training courses.  She was advanced to private first class (PFC)/E-3 and she was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar. 

4.  On 7 July 1982, she departed her unit at Hunter Army Airfield, GA, in an AWOL status and returned to military control on 12 July 1982.  Additionally, on 14 July 1982, she again departed her unit in an AWOL status and returned to military control on 15 July 1982. 

5.  On 16 July 1982, she accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 7 to 12 July and from 14 to 15 July 1982.  Her punishment consisted of a reduction to private two (PV2)/E-2. 

6.  On 20 July 1982, she departed her unit in an AWOL status and on 18 August 1982, she was dropped from Army rolls as a deserter.  She ultimately surrendered to military authorities at Fort Bragg, NC, on 1 May 1984.  

7.  On 2 May 1984, court-martial charges were preferred against the applicant for one specification of AWOL from 20 July 1982 to 1 May 1984. 

8.  On 2 May 1984, she consulted with legal counsel and she was advised of the basis for the contemplated trial by court-martial for an offense punishable under the UCMJ which authorized the imposition of a bad conduct or a dishonorable discharge, the possible effects of a discharge under other than honorable conditions if her request for discharge in lieu of trial by court-martial was approved, and of the procedures and rights available to her.  

9.  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:

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

10.  On 10 May 1984, her immediate and senior commanders recommended approval of her request with the issuance of an under other than honorable conditions discharge.  The immediate commander stated: 

* he personally interviewed the applicant and she stated she was aware of the consequences of her actions
* she also stated she desired a discharge from the Army and the reason for her AWOL was personal problems
* she stated she had been attacked by three men and she reported the issue to her commander but he took no action
* she saw the three men again and felt threatened by them; she called her platoon sergeant who told her to stay away from them and that he would come get her but he did not show up
* her unit first sergeant charged her with a failure to report and gave her an Article 15; after that, she got fed up and left 

11.  On 13 June 1984, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of an under other than honorable conditions discharge and reduction to the lowest enlisted grade.  On 29 June 1984, the applicant was discharged accordingly.

12.  The DD Form 214 the applicant was issued shows she was discharged for the good of the service - in lieu of trial by court-martial with a characterization of service of under other than honorable conditions.  This form shows she completed 1 year, 5 months, and 12 days of creditable active service during this period and she had lost time from 7 to 11 July 1982, 14 July 1982, and 20 July 1982 to 30 March 1984. 

13.  There is no indication in her records she petitioned the Army Discharge Review Board for a review of her discharge action within that board's 15-year statute of limitations. 

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record shows she 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.  She voluntarily, willingly, and in writing, requested 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.  Further, her discharge accurately reflects his overall record of service.

2.  The applicant was 19 years of age at the time of her enlistment and nearly 20 years of age at the time she left her unit in an extended AWOL status.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations.  Additionally, there is no evidence in the available records and the applicant has not provided sufficient evidence showing that her acts of indiscipline were the result of her age.

3.  However, during her interview with the immediate commander (upon her return from AWOL), she mentioned being attacked (in her current application she mentions being stalked).  Unfortunately, there is no documentary evidence to corroborate her contention.  Nonetheless, the military sexual trauma and/or stalking are documented in her records and she raised that issue as the single issue that led her to go AWOL.  

4.  The applicant's record is void of any serious previous misconduct during this period of service and the misconduct of going AWOL, albeit on multiple occasions, appears to have been the result of her encounter with an assailant who either stalked her or sexually assaulted her.  Although the applicant’s misconduct of AWOL is not condoned, it is reasonable to believe that this stressor contributed to her misconduct.
  
5.  Therefore, it is concluded that the sexual assault/stalking were a causative factor in the misconduct that led to the discharge.  After carefully weighing that fact against the severity of the applicant's misconduct, there is sufficient mitigating evidence to warrant upgrading the characterization of the applicant's service to a general discharge under honorable conditions and restoring her rank/grade to PV2/E-2 with an effective date of 29 June 1984.

BOARD VOTE:

____X___  ____X___  ____X___ GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by re-issuing the applicant's DD Form 214 for the period ending 29 June 1984 to show the characterization of service as "General, Under Honorable Conditions" and her rank/grade as PV2/E-2 with an effective date of 13 June 1984.



      _______ _   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)                                         AR20140008502



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ABCMR Record of Proceedings (cont)                                         AR20140008502



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