BOARD DATE:	  3 February 2015

		DOCKET NUMBER:  AR20140009218 


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 to an honorable discharge and reinstatement of her rank.

2.  The applicant states it is very shameful for her to address this matter.  She was in denial and avoided conversations about her military career until just recently.

   a.  She enlisted in the U.S. Army on 5 October 1982 and also reenlisted a couple of times.  She was trained in military occupational specialty (MOS) 75C (Personnel Management Specialist) and served in both the continental United States (CONUS) and overseas.  She was awarded the Army Commendation Medal, Army Achievement Medal (3rd Award), Army Good Conduct Medal 
(2nd Award), and several Certificates of Achievement and Commendation.  
She adds that she never received any adverse actions during her career.

   b.  While serving in Berlin, Germany, she suffered from severe mental and physical abuse from her (now ex-) husband, who was also in the military at the time.  The abuse was documented in the Military Police blotter.  As a result, the commander cancelled his Consecutive Overseas Tour and returned him to CONUS.  At the time, she didn't receive any form of counseling or assistance.  Being a single parent with two boys she had to remain strong so as not to let her personal problems interfere with her military duties.

   c.  The applicant states her mother had always been her dependent.  She was sending her $500.00 per month, but began to encounter financial hardship herself and had to reduce the amount to $300.00.  After her divorce was finalized, her ex-husband was required to send her only $300.00 for child support, which helped her some, but she continued to struggle financially.

   d.  While serving in Berlin, Germany in the latter part of 1990, she was working long hours to support the deployment of Soldiers in support of Operation Desert Shield.  Then, in December 1990, she was reassigned to Fort Leavenworth, KS.  She was extremely exhausted and stressed from the responsibilities of relocating.  In addition, she found her new office disorganized and lacking in procedures.  She discussed this with her new Noncommissioned Officer in Charge (NCOIC), Sergeant First Class (SFC) P____ M____.  They began to organize and streamline office functions and processes; however, there was resistance from others in the office.  The implementation of the changes required her to work late nights and on weekends (she brought her children with her on weekends).

   e.  She graduated in the top 10 percent of her Basic Noncommissioned Officer Course.  When she returned to her unit, there was a shortage of staff and she was sometimes working three or four desks in the office.  She began to experience health problems from the stress and anxiety.  Her anxiety level was high and she was feeling depressed.

   f.  During all of this time she had not taken any prolonged leave and she had accrued about 55 days of annual leave.  In early September 1991, she and her supervisor agreed that she should take leave.  On 19 September 1991, while she was on leave, she spoke with her NCOIC (SFC M____), company commander (Captain (CPT) D____ F____), and Lieutenant Colonel (LTC) R____ P____ to request an extension of leave.  Her request was based on her mother's terminal illness.  She also informed them that she would be requesting a discharge based on dependency/hardship when she returned.  

   g.  On 23 September 1991, she met with her company commander and explained to her how difficult it was for her to both take good care of her family and effectively perform her military duties.  CPT F____ suggested that she seek counsel and guidance from a Chaplain about her concerns.  The Chaplain provided her a letter in support of her request for a discharge.

   h.  On 24 September 1991, she spoke with another Chaplain, (CPT) R____, who empathized with her situation, as she was a single mother as well.  They discussed the command's position on approving or disapproving her request. 
At that point, she came to realize the command was not going to support her request.  The thought of her request for discharge being disapproved led to feelings of despair and irrational thoughts.
   i.  On 25 September 1991, she telephoned her NCOIC and told her that she was driving to New York to be with her mother.  Upon arriving, her sister (who was also terminally ill with breast cancer) was there.  There were many family issues to deal with.  She felt hopeless and depressed due to her family's situation and problems.  She began to lose touch with reality.

   j.  On 9 October 1991, she took her children with her to Turkey.  She doesn't have a rational reason for this other than she had remembered that some of her colleagues told her how nice it was when they had visited Turkey.  However, she knew that she was now in trouble with the military.

   k.  She travelled to Istanbul and then on to Izmir, where she taught English for a short while.  She had told her mother how to contact her.  During an extensive talk about her situation, her mother persuaded her to turn herself in and face the consequences of her actions.  On 26 December 1991, she turned herself in at a U.S. Air Force command.

   l.  Her mother passed away on 23 March 1993 and left an eternal sadness in her.  She has struggled to put her shameful behavior behind her and regain her life.  Since then, she has received four degrees (i.e., Associate of Science (Business Administration), Bachelor of Science (Sociology), and two Masters of Arts (Secondary Education and Educational Leadership)).  She has been a teacher in inner-city school districts for the past 12 years and involved in numerous community initiatives.  She has remarried and found happiness.

   m.  She respectfully requests an upgrade of her discharge to an honorable discharge and reinstatement of her rank.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), self-authored statement, DA Form 4187 (Personnel Action), memorandum, and DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 5 October 1982 for a period of 4 years.  Upon completion of training she was awarded MOS 75C.

3.  Through a series of reenlistments (on 17 June 1988 and 16 July 1990), she continued to serve on active duty.  She was promoted to SGT (E-5) on 1 July 1989.

4.  She served overseas and was assigned to U.S. Army Field Station Berlin, Germany from 8 June 1985 to 7 December 1990.  She was assigned to 
U.S. Army Garrison, Fort Leavenworth, KS, on 14 December 1990

5.  She was absent without leave (AWOL) from 25 September 1991 until
25 December 1991 when she returned to military control at Fort Dix, NJ.

6.  On 28 January 1992, court-martial charges were preferred against the applicant for violation of the Uniform Code of Military Justice (UCMJ), Article 86, for being AWOL from 25 September 1991 to 25 December 1991.

7.  On 28 January 1992, the applicant consulted with legal counsel.  She was informed of the charges against her for violating the UCMJ and that she was pending trial by court-martial.  She was advised of the rights available to her and of the option to request discharge for the good of the service in lieu of trial by court-martial.

	a.  She voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  By submitting her request for discharge she acknowledged that she was guilty of the charge against her or of a lesser included offense therein contained, which also authorized the imposition of a bad conduct or dishonorable discharge.  The applicant's request for discharge states she was not subjected to coercion with respect to her request for discharge.

	b.  She was advised that she might:

* be deprived of many or all Army benefits
* be ineligible for many or all benefits administered by the Department of Veterans Affairs
* be deprived of her rights and benefits as a veteran under both Federal and State laws

   c.  She acknowledged she understood that, if her request for discharge was accepted, she might be discharged under other than honorable conditions.

	d.  She was also advised that she could submit statements in her own behalf and she elected to submit statements.

   e.  The applicant and her counsel placed their signatures on the document.

   f.  Her request for discharge, dated 27 January 1992, and statement, dated 26 December 1991, both offer similar accounts of the events and actions that the applicant offers in her application to this Board.

8.  An Optional Form 271 (Conversation Record ) dated 7 February 1992, shows First Sergeant E____ O. M____, Personnel Control Facility (PCF), Fort Dix, NJ, contacted CPT D____ F____ (the applicant's former company commander) regarding the applicant's request for discharge.  CPT F____ offered positive comments regarding the applicant's military duties and also insight on her family situation and personal problems.  She recommended a general, under honorable conditions discharge based on the applicant's past contributions to the Army.

9.  A DA Form 31 (Request and Authorization for Leave), dated 20 April 1992, shows the applicant requested and was granted excess leave from 24 June 1992 to an unspecified date for the convenience of the government because she desired to be discharged in absentia.  The commander approved her request.

10.  On 20 October 1992, First Lieutenant C____ D. W____, Commander, PCF, Fort Dix, NJ, recommended approval of the applicant's request for discharge with a general, under honorable conditions discharge.

11.  On 28 October 1992, Major (MAJ) S____ M. M____, Commander, Headquarters Command, Fort Dix, NJ, approved the applicant's request for discharge, ordered her reduction to the rank of private (E-1), and directed that her service be characterized as under other than honorable conditions.

12.  A review of the applicant's administrative separation packet failed to show a copy of the General Court-Martial Convening Authority's (GCMCA) delegation of authority to the Commander, Headquarters Command, Fort Dix, NJ, to approve separations under the provisions of Army Regulation 635-200, chapter 10.

13.  Headquarters, Fort Dix, NJ, Orders 307-76, paragraph 1, dated 2 November 1992, as amended by Orders 308-76, dated 3 November 1992, reduced the applicant from SGT (E-5) to PV1 (E-1) effective 28 October 1992.

14.  The applicant's DD Form 214 shows she entered active duty this period on
5 October 1982 and was discharged on 3 November 1992 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, with an under other than honorable conditions characterization of service.  She had completed 9 years, 9 months, and 29 days of net active service during this period and she had 91 days of time lost.  It also shows in –

* item 4a (Grade, Rate or Rank):  PV1
* item 4b (Pay Grade):  E1
* item 12 (Record of Service), block h (Effective Date of Pay Grade):
92  10  28  (28 October 1992)
* item 13 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) –

* Army Commendation Medal
* Army Achievement Medal (2nd Oak Leaf Cluster)
* Army Good Conduct Medal (2nd Award)
* Army of Occupation Medal with Germany Clasp
* Noncommissioned Officer Professional Development Ribbon with Numeral 2
* Army Service Ribbon
* Expert Marksmanship Qualification Badge with (M-16) Rifle Bar

* item 4 (Military Education) –

* Personnel Management Specialist Course, 8 Weeks, December 1983
* School of Standards, 1 week, 1985
* German Headstart, 1 week, 1985
* Noncommissioned Officer Development Program, 2 weeks, 1987
* Primary Leadership Development Course, 4 weeks, September 1988
* Army Hearing Conservationist Course, 1 week, September 1989
* Basic Noncommissioned Officer Course, 8 weeks, June 1991

* item 18 (Remarks) shows, in pertinent part, "Immediate Reenlistments This Period:  821005-880616; 880617-900715."  It does not show the period of her continuous honorable active service.

15.  A review of the applicant's military personnel record failed to reveal evidence of any other disciplinary actions or adverse information.
16.  A review of her military personnel record failed to reveal any evidence that she applied to the Army Discharge Review Board for review of her discharge within its 15-year statute of limitations.

17.  In support of her application the applicant provides the following documents.

   a.  DA Form 4187 that shows the applicant requested separation because of dependency or hardship on 23 September 1991.  The form shows her commanding officer' signature block (CPT D____ L. F____), but it is not signed.

   b.  A memorandum , dated 23 September 1991, that shows Chaplain (MAJ) G____ F. S____ confirmed the applicant had talked with him about her request for a sole parent discharge.  He indicated she expressed genuine concern about her two children, that she had thought through her options, and he recommended approval of her request.

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

   a.  Chapter 3 (Characterization of Service/Description of Separation):

    	(1)  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; and

	 	(2)  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.

	b.  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.

    c.  Paragraph 10-4 (Consideration of request) provides that commanders having discharge authority must be selective in approving requests for discharges in lieu of trial by court-martial.  The discharge authority should not be used when the circumstances surrounding an offense warrant a punitive discharge and confinement.  Nor should it be used when the facts do not establish a serious offense, even though the punishment, under the UCMJ, may include a bad conduct or dishonorable discharge.  Consideration should be given to the Soldier's potential for rehabilitation, and his/her entire record should be reviewed before taking action per this chapter.  Use of this discharge authority is encouraged when the commander determines that the offense is sufficiently serious to warrant separation from the Service and that the Soldier has no rehabilitation potential.

19.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, or release from active duty service or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.

	a.  Chapter 2 contains guidance for preparation of the DD Form 214.  It states the source documents for entering information on the DD Form 214 will be the Personnel Qualification Record, Officer Record Brief, separation approval authority documentation, separation orders, or any other document authorized for filing in the military personnel record.

	b.  Paragraph 2-1 states a DD Form 214 will not be prepared for enlisted Soldiers discharged for immediate reenlistment in the RA.

	c.  Paragraph 2-4 contains item-by-item instructions for completing the DD Form 214.  It states item 18 is used for entries required by Headquarters, Department of the Army, for which a separate block is not available and for completing entries too long for their blocks.

		(1)  For enlisted Soldiers with more than one enlistment period during the time covered by the DD Form 214, enter "IMMEDIATE REENLISTMENTS THIS PERIOD (specify dates)."

		(2)  However, for Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except honorable, enter "CONTINUOUS HONORABLE ACTIVE SERVICE FROM (first day of service which DD Form 214 was not issued) UNTIL (date before commencement of current enlistment)."




DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her discharge under other than honorable conditions should be upgraded to an honorable discharge because she completed nearly 9 years of active duty service before the act that led to her discharge; she attained the rank of SGT and was an outstanding Soldier; she requested a hardship/dependency discharge, it was not acted upon, and she made a foolish decision; and she has worked to improve her personal life and that of her community since she was discharged.

2.  Records show the applicant had three separate periods of enlistment in the RA during the period of service under review, as follows:

* enlisted on 5 October 1982 – honorably discharged on 16 June 1988
* reenlisted on 17 June 1988 – honorably discharged on 15 July 1990
* reenlisted on 16 July 1990 – discharged under other than honorable conditions on 3 November 1992

3.  The applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Considering all the facts of the case, it is concluded that the reason for her separation was and remains proper; however, the characterization of her service was inequitable.

4.  The evidence of record shows the applicant was an outstanding Soldier for nearly 9 years prior to the event that led to her submitting a request for discharge for the good of the service.

   a.  The events and circumstances the applicant outlines to this Board are consistent with the statements she provided to her commanders at the time she returned from being in an AWOL status.

   b.  The evidence of record shows that her former company commander was contacted after the applicant returned to military control.  At that time, the former commander substantiated the applicant's statements regarding her personal circumstances and problems.  In addition, the former commander recommended approval of the applicant's request for discharge with a general, under honorable conditions discharge (emphasis added).

   c.  The applicant was under the command of the Commander, PCF, Fort Dix, NJ, for approximately nine months.  The commander recommended approval of the applicant's request for discharge with a general, under honorable conditions discharge (emphasis added).

   d.  The applicant's post-service achievements and conduct were also considered.  They are a testament to her resiliency, perseverance, and determination.  Moreover, they offer evidence of her commitment to family and the greater good of her community.  Thus, the information provided has been very helpful in the deliberations and determination in this case.

5.  In view of all of the foregoing, it is determined that the characterization of service is too severe and it would be appropriate at this time to correct the applicant's records to show she was discharged under honorable conditions in the rank of SGT (E-5).

6.  The governing regulation states a DD Form 214 will not be prepared for enlisted Soldiers discharged for immediate reenlistment in the RA.

   a.  The evidence of record also shows that for Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except honorable, an entry will be made in item 18 showing the period of their continuous honorable active service up until the date before commencement of the current enlistment.

	b.  Item 18 of the applicant's DD Form 214 does not contain such an entry.

	c.  Therefore, it would also be appropriate to correct item 18 of her DD Form 214 to show her continuous period of honorable active service.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  __X___ GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:
   a.  issuing her a new 3 November 1992 DD Form 214 by deleting the entry from:

* item 4a and adding the entry "SGT"
* item 4b and adding the entry "E05"
* item12h and adding the entry "1989 07 01"
* item 24 and adding the entry "General, Under Honorable Conditions"

   b.  adding to item 18 the entry, "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19821005 UNTIL 19900715."

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrade of the characterization for the entire period of service to honorable.




      _______ _  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)                                         AR20140009218



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ABCMR Record of Proceedings (cont)                                         AR20140009218



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