IN THE CASE OF:	  

		BOARD DATE:	  14 May 2015

		DOCKET NUMBER:  AR20140017269 


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, in effect:

* that her service under other than honorable conditions be upgraded to honorable
* the issuance of new (reconstructed) orders 

2.  The applicant states:

	a.  She was told she was responsible for her live-in boyfriend and any charges filed.

	b.  She applied for service-connected disability compensation in 1999, but her medical records did not show up until 2010.  

	c.  No one seems to understand the meaning of an "unconditional discharge."  
	d.  She is homeless and she has suffered from psoriasis and arthritis since receiving 2 shots in preparation for deployment to Kuwait.  She does not want to pull her file from the Department of Veterans Affairs (VA), because it took many years for her to get to the top of the list for consideration.  

	e.  She was told the "reconstructed orders" could be done with copies.  

	f.  Her release date after 4 years of honorable service should have been 
19 January 1991.  The orders were cut and were sent to the National Personnel Records Center; however, they were later taken out of her file.  

	g.  There is a law concerning "unconditional discharges," where a person is eligible for benefits although they do not physically have a discharge.  It appears the VA did not take into consideration Title 38, Code of Federal Regulations (CFR), section 3-13, when she first submitted her claim.

	h.  She is trying to make it easier for the VA and herself by having her orders reconstructed in order to assist them in their determination.  She originally contacted the Pentagon and she was advised to contact the Army Board for Correction of Military Records (ABCMR).

	i.  Needless to say, the 3 months she served would still be under "general, under other than honorable conditions"; however, she was not guilty of those allegations and there were extenuating circumstances.  She has been in touch with the Pardon Attorney's Office within the Department of Justice and she is sending a letter to the Joint Chiefs of Staff for review of the circumstances, not only to hear her case and secure to evidence that proves her innocence; but for a review and consideration by the Commander in Chief for the future assistance of all military personnel similarly situated.  It has to do with information sharing between military and civilian law enforcement, courts, and veteran services representatives.

	j.  Although it has no bearing on the reconstruction of her honorable orders, she lived in Pennsylvania when there was a drug bust of about 14 people.  Her former live-in military boyfriend was arrested in that drug sting.  The Army basically told her she was responsible for his actions.  The 0.06 grams of drugs were a part of his charges.  Civilian authorities had the home under surveillance for 6 months and stated that she was not guilty of any crime.  The military did not secure the wiretap, proving they had no case.  

	k.  She does not know for sure, but she was facing 55 years in prison at Fort Leavenworth, KS, for a crime that, whoever investigated for 6 months, was fully aware she had no involvement.

	l.  She participated in the voluntary payroll deduction and she made contributions to the GI Bill.  She was discharged with an under other than honorable conditions discharge in lieu of trial by court martial.  She tried to apply for the use of the GI Bill in 1992; but the financial aid counselor told her she would not submit her application because she was not eligible.  She knows there is something called an "unconditional discharge" and she believes she is eligible for some benefits based on that type of discharge.
	m.  She spoke to someone who told her the honorable discharge orders, were not in her personnel file, but they could be reconstructed; because there was an overlap of the executive orders from the President during Operation Desert Shield.  

	n.  She is including the necessary paperwork she believes is needed to reconstruct her original orders.  She also included some of the information concerning the charges that were brought against her after she was indefinitely extended.  She also provided proof that she was eligible for a pregnancy discharge, which they decided not to give her.  She is not including medical records that may have a bearing on the fact that her disability occurred while in the military.  The correct diagnosis was not made until about 1 year after she returned to Illinois for testing.

	o.  She was unable to send her file in within the 15-year deadline (statute of limitations) due to the fact that the Springfield, Illinois Police Department continually had her involuntarily hospitalized in various mental wards.  She suffers from schizophrenia; but lately the police department has not needed to assist her back and forth to any medical facility.  She was in one of those hospitals on the 15th year anniversary.

	p.  She should never have been charged with a crime.  From her DD Form 214 (Certificate of Release or Discharge from Active Duty) the Board can see her awards and the service given to the Army.  She took correspondence courses and she entered the military with work experience and an Associate's Degree in Business Administration.  She continued her college education while in uniform and she had been accepted in a master's degree program in public administration.

	q.  Although the police has assisted her getting to mental hospitals, she has had no major involvement with law enforcement since her release from the military except for traffic tickets.  There was one occasion where she had a theft charge of an envelope.  Just as she accepted the administrative discharge she accepted 1-year of probation on the theft charge, because Judge M _ _ _ use to send people to jail for life plus additional years and she was so afraid of him.  She did not even hear a word he said until he told her to sign the paperwork.

	r.  She has four children and she took care of her grandmother, aunt, uncle, and mother until they passed away.  She worked until 1999 when she opened her own business, "Computerlady," which she ran until 2002.  With the events of 11 September 2001, and her military training and knowledge of changes in the world of technology, she did not feel she wanted to continue in that line of work, purchasing surplus computers from the State of Illinois Central Management Services and programming them with educational programs for low income children and families in her community.  She loved doing that work and it brought her the most pride because she made something from nothing and it allowed her to be at home with her own young children and provide a valuable service in her field of interest to bridge the digital divide.

	s.  She was told that she was responsible for Mr. T's (her ex-boyfriends) actions.  She believes is where they secured the 0.08 grams (of drugs) in the 
3 charges against her, for a total 0.24 grams.  Today, that would not even be enough to be a charge of any kind.  She was told her after the Article 32 hearing that she would be looking at 55 years in Fort Leavenworth, KS, for his actions.  That is how her separation came about.  However, her medical records show she was pregnant at the time and eligible for a pregnancy discharge; but it was turned down. 

	t.  At the time, her landlord sent her to court and he told her command that she had not paid her rent for almost a year.  She counter sued and won.  The military began the process to charge her the same day or the next day.
The suggestion of a 55-year sentence at Fort Leavenworth was cruel and unusual to hear by an innocent pregnant woman. 

	u.  There was a drug test sheet that came back positive as well.  They called her out of the chaplain's office 3 times to take that test.  It had errors, which is not allowable.  She is enclosing an article on Mr. D _ _ H_ _ , the Drug and Alcohol Abuse Counselor, who was recently found guilty of distribution of 500 grams of cocaine in another drug bust in Carlisle Barracks, PA.  Apparently, the Drug and Alcohol Counseling and Testing facility is unaware of the procedures and the law.

	v.  She appreciates any and all considerations the Board can give in this matter.  She checked the box for a personal appearance because she has records that she can explain; however, if the discharge can be issued for the initial time period and consideration of her lost benefits, pay grade, and the charges during the last 3 months without it, she is willing to waive that appearance.  

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Memorandum from the Military Personnel Division, Carlisle Barracks, PA, dated 20 December 1990, subject:  Suspension of Active Component Voluntary Separation of Officers and Enlisted Personnel (Stop Loss)
* Headquarters (HQ), Carlisle Barracks, Orders Number 165-3, dated
20 December 1990
* National Institute of Military Justice (NIMJ) article titled:  Drug Bust for Substance Abuse Program Director

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 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.  On 20 January 1987, the applicant enlisted in the Regular Army for a period of 4 years.  Her enlistment contract includes in Section C (Partial Statement of Existing United States Laws), paragraph 9c, the statement:  "In the event of war, my enlistment in the Armed Forces continues until six (6) months after the war ends, unless my enlistment is ended sooner by the President of the United States."

3.  She authenticated her enlistment contract with her signature, acknowledging she understood all of the stipulations contained in her enlistment contract.  

4.  A memorandum from the Military Personnel Division, Carlisle Barracks, PA, dated 20 December 1990, subject:  Suspension of Active Component Voluntary Separation of Officers and Enlisted Personnel (Stop Loss), informed her that:

* the provisions of Army Regulation 635-200 (Personnel Separations-Enlisted Personnel) governing voluntary separations and releases were suspended
* her expiration of term of service (ETS) date of 19 January 1991 had been extended indefinitely in support of Operation Desert Shield
* if she had compelling compassionate reasons or her separation would be in the Army's best interest, she could submit an application for an exception to policy
* she was encouraged to reenlist immediately, because there were cash incentives if the reenlistment took place during the involuntary extension


5.  There is no evidence indicating she submitted an exception to policy request to be separated upon her normal ETS date of 19 January 1991.  There is also no evidence indicating she requested to be separated due to pregnancy or that she was pregnant at the time.

6.  HQ, Carlisle Barracks Orders Number 165-3, dated 20 December 1990, rescinded the unexecuted portion of HQ, Carlisle Barracks Orders Number 
131-3, dated 11 October 1990, pertaining to her release from active duty.

7.  HQ, Carlisle Barracks Orders Number 131-3, dated 11 October 1990, were not located in the applicant's available military records.

8.  On 4 January 1991, court-martial charges were preferred against her for:

* wrongful use and possession of cocaine on or about 17 October 1990
* wrongful possession and distribution of .06 grams, more or less, of cocaine on or about 31 August 1990, 15 October 1990, and 7 September 1990

9.  On 28 February 1991, the applicant consulted with legal counsel and she 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 Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to her.  

10.  Following consultation with legal counsel, she voluntarily 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 acknowledged she was making the request of her own free will and that she had not been subjected to any coercion whatsoever by any person.  She also acknowledged she understood the elements of the offenses charged and that she was guilty of at least one of the charges against her or of lesser-included offenses which also authorized the imposition of a bad conduct or dishonorable discharged.  She was advised of:

* the nature of her rights under the UCMJ
* the elements of the offense with which she was charged
* the facts which must be established by competent evidence beyond reasonable doubt to sustain a finding of guilty
* the maximum permissible punishment if found guilty

11.  She further acknowledged she understood she could be issued a discharge under other than honorable conditions and she could be ineligible for many or all benefits administered by the VA, that she could be deprived of many or all Army benefits, and that she could be ineligible for many or all benefits as a veteran under both Federal and State laws.  She acknowledged she could expect to encounter substantial prejudice in civilian life by reason of an under other than honorable conditions discharge.

12.  The U.S. Army Training Center, Fort Dix, NJ, Office of the Staff Judge Advocate reviewed the court-martial charges and its specifications and the Article 32, UCMJ, Report of Investigation on 21 February 1991, and concluded the allegations in each specification were warranted by the evidence indicated in the report of the Article 32 investigation.

13.  On 5 March 1991, the separation authority approved her request for discharge, and directed her service be characterized as under other than honorable conditions.  

14.  She was discharged accordingly on 15 March 1991.  Block 18 (Remarks) of her DD Form 214 shows she was retained on active duty 55 days past her normal ETS date as essential to national security, per Title 10, U.S. Code, section 673 (renumbered section 12305).

15.  There is no evidence indicating she executed a reenlistment prior to separation on 15 March 1991.

16.  There is no evidence showing she applied to the Army Discharge Review Board for an upgraded of her discharge.

17.  She provided an NIMJ article titled:  Drug Bust for Substance Abuse Program Director, which refers to an incident in which the Carlisle Barracks Substance Abuse Program Director was arrested on drug charges.  The article is dated 22 June 2011.

18.  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 states 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.  Title 38, U.S. Code, section 3-13 (Discharge to change status) states:

	a.  A discharge to accept appointment as a commissioned or warrant officer, or to change from a Reserve or Regular commission to accept a commission in the other component, or to reenlist is a conditional discharge if it was issued during one of the following periods: 

		(1)  World War I; prior to November 11, 1918.  As to reenlistments, this subparagraph applies only to Army and National Guard.  No involuntary extension or other restrictions existed on Navy enlistments. 

		(2)  World War II, the Korean conflict or the Vietnam era; prior to the date the person was eligible for discharge under the point or length of service system, or under any other criteria in effect. 

		(3)  Peacetime service; prior to the date the person was eligible for an unconditional discharge. 

	b.  Except as provided in paragraph (c) of this section, the entire period of service under the circumstances stated in paragraph (a) of this section constitutes one period of service and entitlement will be determined by the character of the final termination of such period of active service except that, for death pension purposes, section 3.3(b)(3) and (4) is controlling as to basic entitlement when the conditions prescribed therein are met. 


	c.  Despite the fact that no unconditional discharge may have been issued, a person shall be considered to have been unconditionally discharged or released from active military, naval or air service when the following conditions are met:
 
		(1)  The person served in the active military, naval or air service for the period of time the person was obligated to serve at the time of entry into service; 

		(2)  The person was not discharged or released from such service at the time of completing that period of obligation due to an intervening enlistment or reenlistment; and 

		(3)  The person would have been eligible for a discharge or release under conditions other than dishonorable at that time except for the intervening enlistment or reenlistment. 

20.  Department of the Army Personnel Policy Guidance for Overseas Contingency Operations, states that the authority of the President or his designee, to suspend certain laws, regulations, and policies that allow promotion, separation, or retirement is commonly known as Stop Loss when invoked.  Stop Loss is a temporary management tool authorized by Title 10, U.S. Code, section 12305.  The authority of stop loss is tied to the order to active duty of Reserve Component Soldiers under a mobilization scenario and a determination that certain or all members of the armed forces are essential for the national security of the United States.  The purpose of stop loss is to sustain a force that has trained together to remain a cohesive element throughout the deployment.

21.  Army Regulation 635-5 (Separation Documents), in effect during the applicant's active duty service, prescribed the separation documents which are prepared for individuals upon retirement, discharge, or release from active military service.  The regulation stated that routinely, a Soldier should not be considered to have completed the first full term of active service if separation occurs before the end of the initial contracted period of service.  However, if a Soldier reenlists before the completion of that period of service, the first term of service is effectively redefined by virtue of the reenlistment contract.

22.  Army Regulation 15-185 (ABCMR) provides guidance for hearings and the disposition of applications.  It states that applicants do not have a right to a formal hearing before the ABCMR.  The Director of the ABCMR or the Board may grant a formal hearing whenever justice requires.



23.  The VA, in determining qualifications for benefits administered by that agency, generally holds that an individual who accepts a discharge prior to completion of his/her complete term of obligated service may not be eligible for benefits unless or until the VA or the Service Department determines that the early discharge amounted to a complete and unconditional separation from the service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of her under other than honorable conditions discharge has been carefully considered.  

2.  The available evidence shows she was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  The records show that after consulting with legal counsel, she voluntarily requested discharge from the Army in lieu of trial by court-martial.  By requesting discharge, she admitted she was guilty of the charge(s).

3.  Her voluntary request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was administratively correct and in conformance with applicable laws and regulations.  There is no indication the request was made under coercion or duress.

4.  Her record of indiscipline included court-martial charges for very serious offenses for which she admitted guilt.  Based on the seriousness of her offenses, and in view of the fact that she voluntarily requested to be discharged in order to avoid a trial by court-martial that could have resulted in a punitive discharge, her overall record of service did not support the issuance of an honorable or general discharge by the separation authority at the time and it does not support an upgrade of her discharge now.

5.  She contends her record should be corrected to show she is authorized a complete and unconditional discharge; however, this provision of law and regulation pertains to a Soldier who has executed one or more reenlistments.  She was involuntarily extended on active duty in support of national security during a period of war and there is no evidence indicating she executed a reenlistment prior to discharge.  Therefore, there is no basis for granting her requested relief.



6.  The applicant indicated she is willing to appear before the Board.  However, there are sufficient records available to conduct a fair and impartial adjudication of her case.  The applicant's personal appearance would not change the facts surrounding her separation processing for misconduct.  Therefore, a formal hearing is not required to serve the interest of justice in this case.

7.  Her post service conduct and accomplishments were noted; however, she failed to show that her separation processing and/or the character of service she received were in error or unjust.  As a result, there is no basis for granting her an honorable or general characterization of service.

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)                                         AR20140017269



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140017269



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1