IN THE CASE OF:	  

		BOARD DATE:	    24 September 2015

		DOCKET NUMBER:  AR20150001474 


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 correction of her military records by upgrading her under other than honorable conditions (UOTHC) discharge to an uncharacterized or general, under honorable conditions discharge.
   
2.  The applicant states she was harassed and handcuffed by her first sergeant and told she was going to jail because she was gay.  She was terrified and made a mistake.  She was only 18 years of age at the time.  All she ever wanted was to serve her country.  Today it is not illegal to be gay and in the military.  She would serve today if she could.  She has carried the shame of her discharge for too long.  She did not know she was gay when she entered the Army.  The tactics used against her were unfair, unjust and un-American.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) Member copies Number 1 and 4
* DD Form 794A (Discharge Under Other Than Honorable Conditions), dated 9 January 1985

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.  On 14 October 1983, the applicant, at the age of 17 years and 2 months, enlisted in the U.S. Army Reserve under the delayed entry program.

3.  On 19 April 1984, the applicant enlisted in the Regular Army for a 3-year period.  She completed her initial training and was awarded military occupational specialty (MOS) 16E (HAWK Fire Control Crewmember).  She was subsequently assigned for duty with Battery C, 1st Battalion, 7th Air Defense Artillery, located at Fort Bliss, Texas.

4.  On 17 October 1984, the applicant underwent a mental status evaluation whereat her behavior was hostile.  She was fully alert and oriented and displayed an unremarkable mood.  Her thinking was clear, her thought content normal and her memory good.  The applicant was mentally responsible.  She presented mixed personality features of antisocial/passive-aggressive/immaturity.  She was psychiatrically cleared for any administrative action deemed appropriate.

5.  Records show the applicant was absent without leave (AWOL) at 0500 hours, 
23 October 1984.  She was dropped from the rolls of the Army on 23 November 1984.

6.  On 27 November 1984, the applicant surrendered to military authorities at Travis Air Force Base, California.

7.  On 28 November 1984, charges were initiated against the applicant for violation of Article 86 for being AWOL from on or about 23 October to 
27 November 1984.

8.  On or about 30 November 1984, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to her.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of Army Regulation 635-200, chapter 10.  She elected to not make a statement in her own behalf.

9.  After consulting with counsel and being advised of her rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  She acknowledged she had been advised of and understood her rights under the UCMJ, and that she could receive an UOTHC discharge which would deprive her of many or all of her benefits as a veteran, that she could expect to experience substantial prejudice in civilian life if she received an UOTHC discharge.

10.  In her request for discharge, the applicant indicated that she understood 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 dishonorable discharge.  She further acknowledged she understood that if her discharge request was approved, she could be deprived of many or all Army benefits, that she could be ineligible for many or all benefits administered by the Veterans Administration, and that she could be deprived of her rights and benefits as a veteran under both Federal and State law.

11.  On 13 December 1984, the applicant’s company commander stated the applicant had a total of 6 months and 3 days of creditable military service.  She was married.  She had no courts-martial or nonjudical punishment.  She stated personal reasons were why she was AWOL; but did not elaborate.  The commander stated she was unable to adjust to military life and considered rehabilitative efforts to be futile.

12.  On 20 December 1984, the separation authority approved the applicant’s request for discharge and directed that she be issued a DD Form 794A.  On 
9 January 1985, the applicant was discharged accordingly.  She had completed 
8 months and 21 days of creditable active military service and accrued 35 days of lost time due to AWOL.

13.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of her discharge within its 15-year statute of limitations.

14.  Army Regulation 635-200 (Personnel Separations):

	a.  Chapter 10 of that regulation provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions was normally considered appropriate.

	b.  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.

	c.  Paragraph 3-9 provides that a separation will be described as an entry level (uncharacterized character of separation) when separation action is initiated while a member is in an entry level status (first 180 days of active duty for Regular Army Soldiers), except in specified circumstances.    

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her military records should be corrected by upgrading her UOTHC discharge to an uncharacterized or general, under honorable conditions discharge because she was harassed and handcuffed by her first sergeant and told she was going to jail because she was gay.

2.  The applicant was not in an entry level status when separation action was initiated against her, therefore an uncharacterized separation would not be appropriate.  Evidence shows that the applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize her rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The applicant's contention that she was young at the time is not sufficiently mitigating to warrant relief.  The available evidence shows she was just over 
17 years of age, married, had completed her initial training, and was advanced to private, pay grade E-2, indicating her ability to serve satisfactorily in the military.

4.  Notwithstanding the applicant's assertion that it would be unjust not to upgrade her discharge, there is no available evidence showing that she had been abused or mistreated in any way while in the military service.  There is no documentary evidence showing she had any mitigating circumstances or that her AWOL was a reasonable solution to them.

5.  The applicant’s contention that she was gay but did not know it before entering the military service is not substantiated by any documentary evidence.  Furthermore, there is no indication that the reason for her discharge was anything other than her being AWOL and dropped from the rolls of the Army.

6.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20150001474





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ABCMR Record of Proceedings (cont)                                         AR20150001474



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