RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         2 March 2006
      DOCKET NUMBER:  AR20050018078


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. Jerome L. Pionk               |     |Member               |
|     |Ms. Peguine M. Taylor             |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that her under other than honorable
conditions (UOTHC) discharge be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that in 1980, she was raped by an
officer and submitted a complaint.  She claims that after the rape, she
suffered severe mental duress and falsified a reason (immediate family
death) to take leave to get away for awhile.  This falsification was later
discovered and she was presented with a charge of taking leave under false
pretenses.  She claims that in a compromise settlement, she agreed to drop
the rape charges she made and agreed to accept an UOTHC discharge.  She
states that she served her country honorably and regrets the entire
situation that led to her discharge, and she wishes very much that her
discharge be upgraded to an HD.

3.  The applicant provides no documentary evidence in support of her
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 8 July 1980, the date of her separation.  The application
submitted in this case is dated 13 August 2005.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant's record shows that she enlisted in the Regular Army and
entered active duty on 23 July 1979.  She was trained in and awarded
military occupational specialty (MOS) 95B (Military Police), and was
assigned to Fort Dix, New Jersey for her first permanent duty station.  Her
record documents no acts of valor, significant achievement, or service
warranting special recognition.

4.  On 7 May 1980, a Charge Sheet (DD Form 458) was prepared preferring
four court-martial charges against the applicant for violating Articles
107, 128, 131 and 134 of the Uniform Code of Military Justice (UCMJ).
Charge I was for violating Article 107 by making a false official statement
that she was raped by an officer.  Charge II was for two specifications of
violating Article 128 by assaulting two other Soldiers on two separate
occasions.  Charge III was for violating Article 131 by rendering false
testimony, and Charge IV was for violating Article 134 by making a false
affidavit while under oath.

5.  On 5 June 1980, 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 UCMJ, the possible
effects of an UOTHC 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.

6.  In her request for discharge, the applicant also indicated that she
understood that by requesting discharge, she was admitting guilt to the
charges against her, or of a lesser included offense(s), that also
authorized the imposition of a bad conduct or dishonorable discharge.  She
further acknowledged that she understood that if her discharge request was
approved, she could be deprived of many or all Army benefits, that he could
be ineligible for many or all benefits administered by the Department of
Veterans Affairs (VA), and that she could be deprived of her rights and
benefits as a veteran under both Federal and State law.

7.  On 1 July 1980, the separation authority approved the applicant’s
request for discharge and directed that she receive an UOTHC discharge and
be reduced to the lowest enlisted grade.  On 8 July 1980, the applicant was
discharged accordingly.

8.  The DD Form 214 issued to the applicant on 8 July 1980 shows she was
separated under the provisions of chapter 10, Army Regulation 635-200, for
the good of the service in lieu of trial by court-martial.  This document
further shows she completed a total of 11 months and 16 days of creditable
active military service.

9.  The record gives no indication that the applicant applied to the Army
Discharge Review Board (ADRB) requesting an upgrade of her discharge within
that board’s 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 10 of that regulation provides,
in pertinent part, 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 UOTHC is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that she was raped and because of this
suffered mental distress that impaired her ability to serve was carefully
considered.  However, there is insufficient evidence to support this claim.


2.  The evidence of record confirms the applicant submitted false
statements and testimony regarding the rape allegation she made against an
officer.  As a result, absent some evidence to support her assertion that
she was raped, there is insufficient evidence to support her assertion that
she simply dropped the rape charge to accept a discharge.

3.  The evidence of record confirms the applicant was charged with the
commission of offenses punishable under the UCMJ with a punitive discharge.
After consulting with defense counsel, the applicant voluntarily requested
discharge from the Army in lieu of trial by court-martial.  In her request
for discharge, she admitted guilt to the charge(s) against her, or of a
lesser included offense(s), that also authorized the imposition of a bad
conduct or dishonorable discharge.  All requirements of law and regulation
were met and that the rights of the applicant were fully protected
throughout the separation process.  Further, the applicant’s discharge
accurately reflects her overall record of undistinguished service.

4.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 8 July 1980, the date of her
discharge.  Therefore, the time for her to file a request for correction of
any error or injustice expired on 7 July 1983.  She failed to file within
the 3-year statute of limitations and has not provided a compelling
explanation or evidence to show that it would be in the interest of justice
to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___WDP_  __JLP  __  ___PMT_  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  _____William D. Powers____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050018078                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2006/03/02                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1980/07/08                              |
|DISCHARGE AUTHORITY     |AR 635-200 C10                          |
|DISCHARGE REASON        |In Lieu of CM                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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