IN THE CASE OF:	  

		BOARD DATE:	  26 March 2015

		DOCKET NUMBER:  AR20140014201 


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 her general, under honorable conditions discharge be upgraded to honorable.

2.  The applicant states:

   a.  She was counseled to agree to a general, under honorable conditions discharge as opposed to taking "the long tough road of trying to heal while serving."  She was told to get the help she needed, stay out of trouble, and that the Army would automatically upgrade her discharge based on what happened to her.
   
   b.  She was sexually assaulted by her recruiter when she was 17 years old.  The U.S. Army Criminal Investigation Command (USACIDC, also known as CID) investigated and convicted him.  She was then attacked by four drill sergeants while she was in basic training (BT) when they found out about the conviction.  This caused her to become extremely depressed.
   
   c.  When she was in advanced individual training (AIT), her drill sergeant took her under his wing when she told him what happened to her.  He snuck her out of the barracks to stay in the drill sergeant's barracks almost nightly, causing her to be exhausted during daily training.  He bought her alcohol to ease the depression and she got into trouble for having alcohol during inspections.  She told him that service members in her class had forced her to sit in her car with them while they smoked marijuana.  He told her to use it as an opportunity to get out of the Army and to get counseling for everything that had happened to her. 
   d.  She went to the hospital and tried to tell them she felt suicidal but the first sergeant went to the waiting room, crossed her name out, and said he didn't believe her.  She was scared so she went absent without leave (AWOL) for 2 weeks.  When she returned, her drill sergeant told her to just tell them that she had a drug problem as a child and they would let her out of the Army, then they could be together.   
   
   e.  Before she got out of the Army, the drill sergeant helped her to get an apartment in San Antonio, TX, that they both moved into.  The company second lieutenant went with them to view the apartment and another drill sergeant came when they moved in.  She feels as if what happened to her was unjust and that the Army let her down as a teenager that had been assaulted.  It was easier to just get rid of her.
   
3.  The applicant provides her DD Form 214 (Certificate of Release or Discharge from Active Duty), social security card, military identification card, a Privacy Act Request form, and a newspaper article.

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 n the Regular Army on 14 November 1996 when she was 17 years, 9 months, and 20 days old.  She completed BT and on 31 January 1997 she was assigned for AIT to the 232nd Medical Battalion, U.S. Army Medical Department Center and School, Fort Sam Houston, TX.

3.  She received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on:

* 18 February 1997, for failing to report to her appointed place of duty at the prescribed time
* 7 March 1997, for disobeying a lawful order
4.  On or about 14 March 1997, she was reported as AWOL from her assigned unit.  She returned to military control at Fort Sam Houston on or about 12 April 1997.

5.  Her record contains a Sworn Statement, dated 18 April 1997, wherein the applicant swore that about 14 March 1997 she decided to go AWOL and left for Colorado Springs, CO.  While there, she got involved in drugs and used cocaine, crystal methamphetamine, mushrooms, acid, and some type of drugs on a daily basis.  After about 3 weeks, she decided to return to the unit because she did not want to go to jail.  She admitted she had used cocaine before joining the military and did know that it was against Army regulations to use illegal drugs.  She further swore that she did not buy any drugs at Fort Sam Houston; she got them while she was in Colorado.

6.  Her immediate commander subsequently notified her of her intent to initiate separation action against her for misconduct under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for the commission of a serious offense.  Specifically, the commander cited the applicant's wrongful use of cocaine, amphetamines and hallucinogens, her AWOL, and the NJP she received for disobeying a lawful order.  She also stated she was recommending the issuance of a general, under honorable conditions discharge.

7.  The applicant subsequently acknowledged receipt of the commander's intent to separate her.  She consulted with legal counsel and she was advised of the basis for the contemplated separation action, the type of discharge she could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and the procedures and rights available to her.  

8.  She acknowledged that she understood she may encounter substantial prejudice in civilian life if a general discharge was issued to her.  She also acknowledged that she understood that if she received a discharge with a character of service less then honorably she may make application to the Army Discharge Review Board (ADRB) or the ABCMR for upgrading; however, she realized that an act of consideration by either board did not imply that her discharge would be upgraded (emphasis added).  She declined to submit a statement in her own behalf. 

9.  Her senior commander recommended approval of the separation action with the issuance of a general, under honorable conditions discharge.

10.  On 7 May 1997, the separation authority approved the applicant's separation and directed the issuance of a General Discharge Certificate.  On 9 May 1997, she was discharged accordingly.

11.  The DD Form 214 she was issued confirms she was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c(2), for misconduct with an under honorable conditions (general) characterization of service.

12.  There is no evidence in her record that shows while serving on active duty she requested assistance with or counseling for depression as a result of being sexually assaulted by her recruiter before entering active duty or for being attacked by drill sergeants while in BT and/or AIT.  There is no evidence that shows she reported that her drill sergeant in AIT entered into an inappropriate relationship with her.

13.  There is no evidence she applied to the ADRB for an upgrade of her discharge within that board's 15-year statute of limitations.

14.  The applicant provides a newspaper article, dated 24 November 1996, wherein it stated that Army drill sergeants were learning the rules of power and receiving training to prevent sexual harassment.

15.  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 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.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  

16.  Army Regulation 635-200, paragraph 3-7a states 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.




DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant received NJP on two occasions for failing to report and for disobeying a lawful order.  She subsequently went AWOL for 3 weeks and admitted to frequently using illegal drugs while in an AWOL status.  Accordingly, her immediate commander initiated separation action against her for misconduct.

2.  Her separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized hers rights. The type of discharge directed and the reason for discharge were appropriate considering all the facts of the case.

3.  Notwithstanding her contention that she was told her discharge would be automatically upgraded, the Army has never had a policy of automatically upgrading discharges.  In addition, the evidence of record confirms she was advised that she could request an upgrade to her discharge but it did not mean that it would be upgraded. 

4.  Her contention that she was sexually assaulted by her recruiter and attacked by drill sergeants while in basic training is noted.  And although the ABCMR may be sympathetic to her claim, she hasn't provided any evidence to support her contention.  

5.  Based on her overall record, it is clear the applicant's service did not meet the standards of acceptable conduct for Army personnel that would merit an honorable discharge.  Therefore, 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)                                         AR20140014201





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140014201



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1