MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           2 February 2000
	DOCKET NUMBER:   AR1999028778

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

	Ms. McKim-Spilker		Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. James E. Anderholm		Member	
	Mr. Lester Echols		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the
           application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                            records
	Exhibit B - Military Personnel Records (including
	                 advisory opinion, if any)

APPLICANT REQUESTS:  That her general, under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD) and that her narrative reason for discharge be changed to convenience of the government. 

APPLICANT STATES:  In effect, that she became aware that the DoD was encouraging former military personnel to call the Army’s “Hotline” regarding sexual harassment and she came forward and reported her case.  She contends that she received three Article15s and was forced out of the Army because she reported being sexually assaulted and sexually harassed by a drill sergeant. 

COUNSEL CONTENDS:  Counsel concurs with the applicant's presentation and contends that sexual trauma leads to irrational behavior and poor judgment and insight.  Further, that the applicant was not responsible for the incidents that led to her separation as she was suffering from traumatic stress.

EVIDENCE OF RECORD:  The applicant's military records show:

On 23 December 1981 she enlisted in the Army Reserve for a period of 6 years.  Her parent unit, the 937th Postal Detachment in Fresno, California, placed her on initial active duty for training (IADT) for basic combat training (BCT) and advanced individual training (AIT).  She successfully completed BCT at Fort Dix, New Jersey, and proceeded to Fort Jackson, South Carolina, for AIT in military occupational specialty (MOS) 71L (Administrative Specialist).  She did not complete AIT in MOS 71L, and was recycled for AIT training in MOS 76Y (Unit Supply Specialist) at Fort Jackson.

The applicant’s record documents that the highest permanent rank she held on active duty was private/E-1 and the record contains no documented acts of valor, achievement, or service warranting special recognition.

On 21 June 1982 she accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, for AWOL.  Her punishment included forfeiture of $128, and 14 days of restriction and extra duty.

On 25 June 1982 she was rehabilitatively transferred from Company D to Company C, 15th Battalion, 4th CST Brigade.  

On 30 June 1982 she accepted NJP for breaking restriction.  Her punishment included forfeiture of $128, and 14 days of restriction and extra duty.

On 30 June 1982 her superior noncommissioned officer (NCO) counseled her for being in an unauthorized place without a pass, on her motivation and attitude, and for allowing male service members to enter the female floor.  The NCO indicated that the applicant had been a discipline problem since her rehabilitative transfer, that she displayed a bad attitude, and that she had a habit of making up stories to avoid getting into trouble.  She recommended the applicant for separation from the Army.  The counseling NCO was female and the applicant did not report any incidents of sexual harassment during the counseling session. 

On 9 July 1982 she accepted NJP for dereliction of duty by willfully failing to report two soldiers going in and out of a latrine window after bed check.  Her punishment included forfeiture of $128, and 7 days restriction. 

On 9 July 1982 the unit commander provided the applicant formal counseling on his intentions to eliminate her from the Army under the provisions of AR 635-200, Chapter 13, for unsuitability.  He indicated that his decision was based upon her dereliction of security guard duties for which she received NJP.  

On 14 July 1982 the unit commander notified the applicant of initiation of administrative separation proceedings against her for unsuitability manifested by her inability to adjust to the military reflected by her AWOL, knowingly and willfully breaking restriction, and dereliction of duty.

On 16 July 1982 the applicant was provided a mental and physical examination in conjunction with her administrative separation.  She indicated on her Standard Form 93 that she was in very good health, and that she did not suffer from any depression, worry, trouble sleeping, or nervous trouble of any sort.  During her mental examination she did not report any stress associated with a sexual assault to the examiner.  

On 20 July 1982 the applicant submitted a statement on her own behalf to the unit commander in response to the Chapter 13 proceedings.  She indicated that she felt as if “she had been under the gun since her transfer to the new unit and that she had not been given enough time to adjust to the unit and improve herself.”  She did not report an incident of sexual harassment.

On 5 August 1982 the applicant was discharged under the provisions of Chapter 13, AR 635-200 with a GD.  She was credited with 6 months and 25 days active service, and 18 days of lost time. 

On 31 December 1996 the applicant reported that she had been a victim of indecent assault and sexual harassment through the Army Hotline.  On 14 May 1997 the Army Criminal Investigation Command (CID) published an investigative summary of the events concluding that there was probable cause to believe that the offenses were perpetrated against the applicant.

Review of the CID investigative summary reveals that the applicant’s former company commander was interviewed.  He stated that the applicant’s allegations were never reported to him and that he could not specifically recall the applicant.  Other former members of the unit interviewed also failed to substantiate the applicant’s contention that she reported the incident to the chain of command.

Army Regulation 635-200, then in effect, sets forth the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsuitability, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander’s judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier. 

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

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant’s overall record of military service.  

2.  There is no evidence of record to substantiate the applicant’s claim that her command punished her under the UCMJ for reporting an incident of sexual harassment or that the command initiated separation proceedings against her in retaliation to her alleged report.  The CID investigative summary the applicant submitted with her request for upgrade to the Board failed to substantiate or corroborate the applicant’s contentions.  

3.  Neither the applicant, nor her counsel, have submitted any evidence to support that the applicant’s misconduct was a result of traumatic stress associated with sexual harassment or sexual assault.

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 the aforementioned requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___cmf__  ___jea___  ___le___  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999028778	
SUFFIX		
RECON		
DATE BOARDED	20000202	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19820805	
DISCHARGE AUTHORITY	AR 635-200 C13	
DISCHARGE REASON	4900	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  9331		
 2.  0100		
 3.  9500		
 4.		
 5.		
 6.