PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           27 November 2001                   
	DOCKET NUMBER:   AR2001055121

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Lester Echols		Member	
	Mr. John T. Meixell		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that her discharge be upgraded to honorable, that the reason for her discharge be changed, and that her rank of Sergeant First Class (SFC), E-7 be restored.  

3.  The applicant states that none of the 63 issues she raised in her February 1989 enclosure to her Application for the Review of Discharge or Dismissal from the Armed Forces of the United States, DD Form 293, was addressed.

4.  Issues 1 and 3 were her exemplary record.  Issue 2 was the fact she was reassigned to Baumholder, Germany but when the bus stopped at Bad Kreuznach, she was taken off the bus and reassigned to Bad Kreuznach at the request of Captain (CPT) H___.  Issue 4 was the fact the morale of the Record Processing Center went downhill when CPT H___ took command.  She even requested assignment to the Presidential Support Activities but wonders why she never received an answer back on her request.  Issue 5 was her reluctantly-given statement against Specialist (SPC) A___.  She believes SPC A___ had a grudge against her because she was demoted to Private First Class (PFC) as a result of the statement.

5.  Issue 6 was the fact that her First Sergeant (1SG) had ordered her to escort PFC A___ while PFC A___ was outprocessing.  The applicant thought this strange since PFC A___ had just been demoted for assaulting her, the applicant. She was on medications at the time and should not have been driving or up and about for prolonged periods of time.  Issues 7 and 13 were the facts that she signed a statement at the Criminal Investigation Command (CID) which she never read but it was not the statement that was presented to the board.  That is not her signature on the statement.  Issue 8 was the fact the only statement that accused her of being a homosexual was made by PFC A___ on 6 May 1982.  On 9 September 1982, PFC A___ recanted everything she said earlier.  Issue 9 was the fact that on 27 August 1982, Specialist Five H___ stated that any statement PFC A___ made concerning herself or the applicant was not true.  PFC A___ was only out to get Captain H___.

6.  Issues 10, 23, 24, and 25 were related to the fact that during her entire period of service in Germany she was harassed by CPT H___ and sexually harassed by Command Sergeant Major (CSM) M___, who was in the brigade and not in her unit.  (He was identified in the hearing transcripts as “8th RPC-BK, 8th Inf Div (M) and self-identified in the hearing as “I am the CSM in her unit and Chain of Command.  I’ve seen her at work daily”).  She submitted an Inspector General (IG) complaint but nothing ever happened.  Issues 23, 24, 25, and 37 more specifically relate to the fact that to the best of her recollection CSM M___ never 

appeared in front of her board; however, there are statements in the transcripts by him.  His statements are the only statements that were derogatory about her.  Issue 11, the fact that CSM M___ did not appear on her Notification to Appear Before a Board of Officers as a Government witness.  Issue 12 was the fact that she requested nine witnesses but the board called only three of them, all enlisted females.  

7.  Issue 14 was the fact that the Defense made an objection to the applicant’s Sworn Statement being admitted as Exhibit 2 on the grounds that it was made in violation of her Article 31 rights.  Issues 15 and 43 were the facts that, even though the First Sergeant testified that PFC A___ worked for her in SIDPERS, the applicant was never the noncommissioned officer in charge (NCOIC) of SIDPERS and PFC A___ was never her subordinate.  Issue 16 was the fact that, even though the transcripts state “SFC C___ introduced (the applicant) to me at Fort Jackson,” neither Linda T___ nor she knows an SFC C___.  Issue 17 was the fact that she did not know SFC G___ for as long as SFC G___ testified.  

8.  Issue 18 was the fact that the president of the board read excerpts from board exhibits 1 and 2.  Issue 19 is the fact that SFC D___ testified that she, the applicant, told her she was never read her rights.  Issue 20 was the fact that SFC D___ testified that PFC A___ was never her (the applicant’s) roommate.  Issue 21 was the fact that SFC D___ testified that she (the applicant) followed her chain of command.  Issue 22 was the fact that SFC D___ testified that she was not sure that the applicant accused herself of being a homosexual.  SFC D___ agreed that the applicant did not write that statement.

9.  Issues 26, 30, and 31 were the facts that SFC T___ testified that if PFC A___ made a sworn statement to the effect that she and the applicant had a homosexual relationship, it would be a lie.  PFC A___ did not reside with the applicant since October.  The applicant also wonders why the recorder was asking questions.  Issues 27, 28, and 32 were the facts that the Defense objected to questioning by the president of the board and requested that PFC A___ appear before the board.  She never appeared.   Issue 29 was the fact that it was incredible that the president of the board would even wonder if PFC A___ had something about which to hold a grudge against the applicant – PFC A___ received an Article 15 for assaulting the applicant.  

10.  Issues 33, 34, 35, and 36 were the facts that the president of the board asked one of the witnesses questions concerning reenlisting for present duty assignment and her idea of the term “whoring around.”  He also brought up the 

applicant’s state of mind and kept bringing up the assault charges for which PFC A___ was demoted.    The applicant contends the questions had nothing to do with the (action before the) board.

11.  Issue 38 was the fact that the defense challenged the president of the board on his impartiality but was overruled.  Issue 39 was the fact the president of the board later requested the applicant report to him at his office.  Issues 40, 42, and 55 were the facts that her defense counsel had been reassigned prior to assisting her with her appeal.  Issue 41 was the fact that exhibits were missing from the board packet.  

12.  Issues 44, 45, 46, 47, 48, 49, and 57 were the facts that Major General (MG) V___ had suspended her elimination.  The suspension endorsement was given to her by a Captain who told her he was the General’s aide.  Upon receiving the endorsement, she signed out and proceeded to her new unit at Fort Sheridan, IL. Her leave papers were signed by the company commander for leave in conjunction with her transfer to Fort Sheridan.  Her reduction orders were dated after she had signed out of the unit.  The orders assigning her to the Transfer Point at Fort Dix, NJ were dated after she signed out of the unit.  The withdrawal of her military occupational specialty (MOS) orders were dated after she signed out of the unit.  She believes CSM M___ called Fort Sheridan and told them she was there under false pretenses and was impersonating an NCO.  

13.  Issue 50 was the fact that LTC G___ at Fort Sheridan concurred with the original recommendation for elimination without further investigating anything.  Issues 51, 52, and 53 were the facts that she was told the transcripts were “all screwed up.”  Many people were working on the transcripts when she believes only the official recorder should have been preparing them.  The tapes of the transcripts were destroyed.  Issue 54 was the fact that in the transcripts the board stated that she never denied being a homosexual.  However, the board never allowed her to make any statements in her own behalf.  Also, the report of psychiatric evaluation stated, “she denied homosexual tendencies or acts.”

14.  Issues 56 and 58 were the facts that she had written to her Congressman, who tried to help her but got answers from no one.  Issue 59 was the fact that with her profile for a ruptured disc and lower lumbar sacral strain with assignment limitations of no crawling, stooping, running, jumping, marching, or standing for long periods and no strenuous physical activity, she should have received a medical retirement long before May 1982.

15.  Issue 60 was the fact that she did nothing wrong.  The signature on the statement they said she signed is not her signature.  It was proved that PFC 

A___ was never her roommate and that she was never her supervisor.  Issue 61 was the fact that she provided many character witness statements.  Not one of these statements agreed with CSM M___’s assessment of her as a poor soldier. 

16.  Issue 62 reiterated earlier issues.  She did not have a homosexual relationship with PFC A___, she did not sign that statement that said she did have such a relationship, and she was not PFC A___’s supervisor at any time nor her roommate.  Testimony concerning her on/off duty conduct with other subordinates was irrelevant.  Her work performance went beyond what was expected, the only derogatory statements made about her duty performance were made by CSM M___, who, to the best of her recollection, did not appear before the board.  She did not have a malicious vindictiveness towards a commissioned officer.  She was not out to get CPT H___; PFC A___ stated in her statement that she (PFC A___) was out to get CPT H___.

17.  Issue 63 was the fact that she requested, if the Board disapproved her request, that her Certificate of Release or Discharge from Active Duty, DD Form 214, be corrected to show that her service for the period 15 December 1978 through 16 November 1981 was honorable.  Her VA benefits were jeopardized otherwise.

18.  The applicant’s case (to void her discharge and reinstate her on active duty as an SFC, E-7 or to upgrade her discharge to honorable) was originally considered on 20 August 1986 (docket number AC85-04748).  Her request was denied.  Her next case (requesting a physical disability retirement with an honorable characterization of service or to be issued a DD Form 214 for the period 15 December 1978 through 16 November 1981 to show an honorable characterization of service) was considered on 2 September 1999 (docket number AR1999021577).  Her request was denied but she was issued a Correction to DD Form 214, Certificate of Release or Discharge from Active Duty, DD Form 215 to show she had continuous honorable active service from           
15 December 1978 through 16 November 1981.

19.  The applicant’s military records show that she enlisted in the Regular Army on 31 July 1970.  She was promoted to SFC, E-7 on 19 December 1979 in    MOS 75Z (Personnel Senior Sergeant).  She arrived in Germany on or about    14 January 1980 for a 3-year tour.

20.  On 24 June 1981, the Chief, Personnel Records Division recommended the applicant’s promotion to Master Sergeant, E-8 below the zone with duty as a 1SG.  On 24 June 1981, she was recommended for award of the Meritorious 

Service Medal for achievement.  Testimony at her board proceedings indicated the award was disapproved.  On 12 August 1981, she received a letter of commendation from the commander of the 8th Adjutant General Replacement Detachment.  Her Senior Enlisted Evaluation Report (DA Form 2166-5A) for the period ending June 1981 shows that she received the maximum rating of 125.  Her Enlisted Evaluation Report (DA Form 2166-6) for the period ending February 1982 shows that she received a rating of 120.5 out of a maximum of 125. 

21.  On 6 May 1982, PFC A___ made a sworn statement that she was living with the applicant and having a homosexual relationship with her.  The available statement is mostly illegible but it appears she also claimed that CPT H___ was in a homosexual relationship.  

22.  On 6 May 1982, the applicant made a sworn statement that she was living with PFC A___ and had been since October 1981.  She stated that she was having a homosexual relationship with her.  She also claimed that she believed CPT H___ was having a homosexual relationship with a soldier under her (CPT H___’s) supervision.  The first question that had been asked by the CID investigator was “You have just been advised of your legal rights on DA Form 3881.  Do you fully understand your rights and are you willing to discuss the offenses of Sodomy and Lewd & Indecent Acts at this time?”  The applicant responded “yes.”  The DA Form 3881 is not available.  The applicant’s signature is on page two of the DA Form 2823 and she initialed numerous corrections to typographical errors on the statement.  

23.  Action was initiated to discharge the applicant under the provisions of Army Regulation 635-200, chapter 15 for homosexuality.  The applicant was notified    to appear before a board of officers.  She was informed that two witnesses were expected to be called – the CID investigator who took her sworn statement and her 1SG.  She requested nine witnesses – four from her installation (two males and two females); two from elsewhere in Germany; one from Belgium; and      two (PFC A___ and an assistant to her Congressman) from the States.  An administrative separation board was held on 30 August and 1, 2, and                 27 September 1982.  The applicant was advised of her rights and appeared before the board represented by legal counsel.  

24.  On 22 June 1982, the applicant underwent a psychiatric evaluation.  She denied homosexual tendencies or acts.  She insisted she did not make the statements (as indicated in her 6 May 1982 Sworn Statement) and that she was “tricked” by CID.  She was cleared for any administrative action deemed appropriate by the command. 

25.  The board convened on 30 August 1982.  The Rights Warning Procedure/Waiver Certificate of the applicant was marked as Board Exhibit 1 and there were no objections by the applicant’s counsel.  Counsel objected to the applicant’s Sworn Statement being admitted into evidence, stating it was made in violation of her Article 31 rights (compulsory self-incrimination prohibited).  The Government argued that it was clear that she understood what she was reading well enough to correct typographical and other errors.  The clear wording of the rights warning and the statement introduction refuted the supposition that the CID agent made promises.  So, even if it was believed she was not given an Article 31 rights warning it was not sufficient to preclude its acceptance as evidence.  The legal advisor stated that it would be held until further proceeding of the case, at which time he would rule on admittance of the sworn statement as evidence.
Numerous character witness statements were provided to the board.

26.  1SG F___ testified for the Government.  He stated that during the period April to May 1982, the applicant was the NCOIC of SIDPERS and that PFC A___ was working in SIDPERS during the period April to May 1982.  SFC T___ testified for the Defense.  She stated that the applicant and she were roommates during March 1981 – April 1982.  She stated that the applicant and PFC A___ worked together in SIDPERS.  Later in the day SFC G___ (one of the witnesses from elsewhere in Germany) testified for the Defense.  At one point the president read from board exhibit 2, the applicant’s Sworn Statement.  (Presumably the legal advisor had found it was admissible as evidence.)  SFC D___ testified for the Defense.  She stated that the applicant and PFC A___ worked together for a short time.  

27.  CSM M___ testified for the Government.  He stated that the applicant was about the worst NCO he had ever worked with.  He stated he knew PFC A___ and PFC A___ did not work for the applicant.  He stated that CPT H___ was relieved from her duty as commander of the Regional Personnel Center (RPC) due to being suspected of homosexual acts.  He stated that (one time) the applicant was drunk with a group of people from the RPC.  He stated that he had been out with his subordinates and supervisors and had gotten drunk with them.  A lot of NCOs and officers got drunk after duty.  

28.  SFC T___ was recalled for further testimony.  She stated that PFC A___ did not live with the applicant since October 1981 so she knew that part of the applicant’s Sworn Statement was false.  After her testimony, defense counsel requested again that PFC A___ appear in front of the board.  The legal advisor explained the chapter board procedures for calling witnesses.  The recorder argued that the requested witness was not available.  The president requested a sworn statement from PFC A___.

29.  On 9 September 1982, PFC A___ made another sworn statement.  In it she stated she had not told the truth in her 6 May 1982 sworn statement.  She stated that she was assigned to Germany from 1 May 1979 through 6 May 1982 and she had never had a sexual relationship with the applicant nor with any other woman.  She stated she made the statement because she and the applicant were friends and CPT H___ did not like that.  She felt CPT H___ was abusing her position and she strongly felt that CPT H___ influenced her commander to reduce her from E-4 to E-3.

30.  The board recommended discharge of the applicant under other than honorable conditions because (a) the admitted relationship was with a subordinate soldier; (b) of testimony concerning on/off-duty conduct with other subordinates; (c) of work performance; and (d) of malicious vindictiveness toward a commissioned officer.

31.  On 18 October 1982, the applicant wrote up her impressions of a meeting she stated the president of the board asked to have with her.  She stated that she asked how the board could recommend what they did.  She stated the president of the board replied it was because of the grade structure of the applicant and PFC A___.  She rebutted that PFC A___ was on the E-5 promotion list and she was never PFC A___’s supervisor.  They discussed the persecution problem with CPT H___ a bit and her plans to rebut the recommendation and she departed.

32.  The applicant and her defense counsel were able to meet to discuss preparation of a rebuttal to the board and the applicant made a note listing 14 items that apparently defense counsel felt could be rebutted.  Her signature on the Sworn Statement and CSM M___’s testimony (or failure to testify) were not listed as an issue.  Her defense counsel apparently was reassigned prior to the actual preparation of the rebuttal.  

33.  Orders issued 7 December 1982 assigned the applicant, upon completion of her normal date of expected return from overseas (DEROS), to Fort Sheridan, IL.

34.  On 9 December 1982, the applicant rebutted the recommendation for elimination to the commanding general, MG V___.  She denied the charges because they were false.  She stated she had requested a defense counsel since her previous one departed but one was never appointed.  She requested to listen to the tapes of the board because the transcripts did not reflect what was actually said, nor by the right people, but she was denied this right.  She admitted that she was in error when she signed a statement that she did not read but hoped 

that, under all the circumstances surrounding it, that the mistake could be understood.  She hoped that the commanding general would dismiss the recommendation of that board and convene a new board.  She requested that the action be transferred to her new assignment (and attached a copy of her assignment orders) where she could receive a fair and unbiased recommendation.

35.  On 20 December 1982, the applicant completed a Request and Authority   for Leave, DA Form 31, for ordinary leave from 2 January through 28 February 1983.  The document is partially illegible and the full name, title and organization of who signed as the approval authority cannot be read.

36.  On 22 December 1982, MG V___ approved the recommendation for elimination of the applicant with a discharge under other than honorable conditions and directed her reduction to Private, E-1.

37.  On 3 January 1983, the applicant signed out on leave.  The date she signed out on leave is clear; the name and signature of who signed her out is illegible.  

38.  Orders dated 3 January 1983 revoked her assignment to Fort Sheridan, IL.  Orders dated 3 January 1983 reduced the applicant to Private, E-1 and reassigned her to the U. S. Army separation transfer point at Fort Dix, NJ with a report date of 10 January 1983.

39.  A 1st endorsement dated 4 January 1983 purportedly signed by MG V___ suspended the execution of the applicant’s discharge and reduction until 4 July 1983.

40.  When the applicant in-processed at Fort Sheridan, IL, that installation noticed that an evaluation report had not been prepared for her last duty assignment and requested, as a matter of routine, a copy of the report from Bad Kreuznach.  It was apparently at this point that Bad Kreuznach realized the applicant had not separated and informed Fort Sheridan of the circumstances.  

41.  After investigation and obtaining a Sworn Statement from MG V___ that he did not sign the 4 January 1983 endorsement, the Fort Sheridan Staff Judge Advocate (SJA) made a recommendation for action.  The SJA noted that the applicant had an approved separation with a discharge UOTHC under Army Regulation 635-200, chapter 15.  The SJA noted that the applicant had used her original orders to report in to Fort Sheridan.  During the ensuing investigation, she had produced the 4 January 1983 endorsement, which proved to be a 

forgery.  There was no substantial evidence to link her to the forgery.  There was solid evidence of impersonation of an E-7 and the wrongful taking of pay as an  E-7 for two months.  The SJA noted that going forward with a court-martial would prove an undue burden and expense to the Government.  The applicant had a persuasive argument that she had already been punished enough and she was doing a good job at Fort Sheridan.  As Germany indicated they were no longer interested in trying her, the SJA recommended she be separated pursuant to her chapter 15 as soon as possible.  The appropriate approval authority approved this recommendation and directed she be reassigned to the U. S. Army separation transfer point Fort Sheridan, IL for separation processing.  

42.  The applicant was discharged on 10 August 1983, with a discharge under other than honorable conditions, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 15 for homosexuality.  She had completed 13 years, 1 month, and 10 days of creditable active service.

43.  Army Regulation 635-200, chapter 15 (which was added effective 10 March 1981) prescribes the criteria and procedures for the investigation of homosexual personnel and their discharge from the Army.  When the sole basis for separation is homosexuality, a discharge under other than honorable conditions may be issued only if such characterization is otherwise warranted and if there is a finding that during the current term of service the soldier attempted, solicited or committed a homosexual act by using force, coercion or intimidation; with a person under 16 years of age; with a subordinate; openly in public view; for compensation; aboard a military vessel or aircraft; or in another location subject to military control if the conduct had, or was likely to have had, an adverse impact on discipline, good order or morale due to the close proximity of other soldiers of the Armed Forces.  In all other cases, the type of discharge will reflect the character of the soldier’s service.   Chapter 2 states that the recorder of the board will try to arrange for the presence of any available witness that the soldier desires to call.  Expenditure of funds may be authorized for production of witnesses only if the presiding officer or the legal advisor determines that the testimony of a witness is not cumulative; the personal appearance of the witness is essential to a fair determination on the issues of separation or characterization; written or recorded testimony will not accomplish the same objective; the need for live testimony is substantial, material, and necessary for a proper disposition of the case; and the significance of the personal appearance of the witness, when balanced against the practical difficulties in producing the witness, favors production of the witness.

44.  Generally, the NCO command structure of an RPC in Germany during the time period involved consisted of two parts.  A 1SG was in charge of the company and the general military mission requirements, i. e., company formations/accountability, barracks and messing facilities.  An E-9 was in charge of the personnel mission requirements of the RPC itself.

CONCLUSIONS:

1.  The issues will be addressed in the order given above.  Issues 1 and 3, her exemplary record, are noted and were noted in the original case.  Issue 2, her assignment to Bad Kreuznach, is noted but the Board finds it irrelevant to the case.  Issue 4, the low morale of the Record Processing Center, is noted.  Issue 5, her reluctantly given statement against PFC A___ and her belief that PFC A___ had a grudge against her, is noted and the Board believes she has a valid point.  The Board notes that PFC A___ later recanted her statement but also notes the applicant’s own statement implicated herself.  Issue 6, that the applicant was ordered to escort PFC A___ even though PFC A___ had just been demoted for assaulting her, is noted.  The Board also finds that this would have been an odd duty for her but finds it irrelevant to the case.

2.  Issues 7 and 13 concerned the applicant’s contention that her Sworn Statement contains her forged signature.  The Board notes that she did not make this contention in her 9 December 1982 rebuttal to the board’s action.  She provides no evidence to show it is not her signature.  

3.  Issue 8, her contention that only PFC A___’s 6 May 1982 statement accused her of being a homosexual, is noted.  However, the applicant’s own statement also “accused” herself of homosexual conduct.

4.  Issues 10, 23, 24, and 25 concerned the applicant’s contention that she was harassed by CPT H___ and sexually harassed by CSM M___.  She provides no evidence to show that she submitted an IG complaint.  Issues 23, 24, 25, and 37 more specifically relate to the fact that to the best of her recollection CSM M___ never appeared in front of her board.  She did not make this contention in her     9 December 1982 rebuttal.  Issue 11, the fact that CSM M___ did not appear on her Notification to Appear Before a Board of Officers as a Government witness, is acknowledged by the Board to be true.  However, the Board also notes that according to the transcripts CSM M___ testified that PFC A___ was not the applicant’s subordinate.

5.  Issue 12, the fact that the applicant requested nine witnesses but the board called only three of them, all enlisted females, is noted.  The Board notes that three of her requested witnesses resided outside of Germany.  Given the circumstances of the case, the Board concludes that the board appropriately made its decision (concerning expenditure of funds) regarding those witnesses.  At this late date, the Board cannot determine the facts as to why two of the local installation-located witnesses were not called.

6.  Issue 14 concerns the defense’s objection to the applicant’s Sworn Statement being admitted as Exhibit 2 on the grounds that it was made in violation of her Article 31 rights.  The legal advisor presumably ruled that the Sworn Statement was admissible.  Considering the Government’s argument as to why it should be admitted and the applicant’s failure to show she did not sign the statement or that she did not voluntarily make and read the statement, the Board concludes the legal advisor made a proper decision.

7.  Issues 15 and 43, concerning the 1SG’s testimony that PFC A___ worked for the applicant in SIDPERS, is noted.  In light of the NCO command structure of an RPC, the Board concludes that the greater weight should be given to CSM M___’s testimony rather than to the 1SG’s.  Although the applicant indicated that CSM M___ belonged to the brigade and not her unit, the Board notes that he testified that he saw her on a daily basis and was in her chain of command.  Issue 16, when the applicant was introduced to SFC T___, is noted but determined to be irrelevant.  Issue 17, that she did not know SFC G___ for as long as SFC G___ testified, is noted but determined to be irrelevant.  Issue 18, that the president of the board read excerpts from board exhibits 1 and 2, is concluded by the Board to have been appropriate in light of paragraph 6, CONCLUSIONS, above.  Issue 19, that SFC D___ testified that she (the applicant) told her she was never read her rights, is noted.  However, this testimony is contradicted by the applicant’s Sworn Statement.  

8.  Issue 20, that SFC D___ testified that PFC A___ was never the applicant’s roommate, is noted.  Issue 21, that SFC D___ testified that the applicant followed her chain of command, is noted.  Issue 22, that SFC D___ testified that she was not sure that the applicant accused herself of being a homosexual and agreed that the applicant did not write that statement, is noted.  However, the applicant’s Sworn Statement contradicts this testimony and SFC D___ provided no explanation as to how she knew the applicant did not write the statement. 

9.  Issues 26, 30, and 31, that SFC T___ testified that if PFC A___ made a sworn statement to the effect that she and the applicant had a homosexual relationship, it would be a lie, is noted.  The recorder was asking questions because the recorder acted for the Government much as the defense counsel acted for the applicant.  Issues 27, 28, and 32, that the defense objected to questioning by the president of the board and requested that PFC A___ appear before the board, is noted and referral is made to paragraph 5, CONCLUSIONS above.  Issue 29, that the president of the board would even wonder if PFC A___ had something about which to hold a grudge against the applicant, is noted.  

10.  Issues 33, 34, 35, and 36, that the president of the board asked one of the witnesses questions concerning reenlisting for present duty assignment, her idea of the term “whoring around,” and brought up the applicant’s state of mind, is noted.
 
11.  Issue 38, that the defense challenged the president of the board on his impartiality but was overruled, is noted.  However, in light of Issue 39, that the president of the board later requested the applicant report to him at his office and the applicant’s memorandum of that meeting, it appears to the Board that the president’s impartiality may have been tilted slightly on the side of the applicant.  Issues 40, 42, and 55, that her defense counsel had been reassigned prior to assisting her with her appeal, is noted and the Board concludes that such an action was irregular.  However, the applicant and her counsel were able to discuss plans for the rebuttal and the two most important issues the applicant now brings up – a forged signature on the Sworn Statement and the fact that CSM M___ did not testify at the board, were not brought up.  Neither contention was brought up in her 9 December 1982 rebuttal.  Issue 41 was that exhibits were missing from the board packet.  At this late date the Board cannot determine the facts.  

12.  Issues 44, 45, 46, 47, 48, 49, and 57, that MG V___ had suspended her elimination and the suspension endorsement was given to her by a Captain who told her he was the General’s aide, whereupon she proceeded to her new unit at Fort Sheridan, IL, is not credible.  First, the applicant was a senior NCO.  Her discharge had been approved on 22 December 1982.  She should have known that this approval superseded any prior assignment instructions she may have had.  She should have known not to accept an endorsement from someone outside of her chain of command, especially from someone unknown to her even if that person claimed to be the commanding general’s aide.  Second, the 

endorsement is dated 4 January 1983; the applicant departed Germany on         3 January 1983.  This should have struck her as “unusual” if nothing else and she should not have accepted the endorsement as legitimate without checking with her chain of command, new or old.

13.  Issue 50 was that Fort Sheridan concurred with the original recommendation for elimination without further investigating anything.  The Board notes that there was nothing further to investigate concerning the original elimination action.  It had already been approved.  Issues 51, 52, and 53, that she was told the transcripts were “all screwed up,” is noted.  However, at this late date the Board can make no determination concerning her contention.  Issue 54, that in the transcripts the board stated that she never denied being a homosexual, the board never allowed her to make any statements in her own behalf, and the report of psychiatric evaluation stated “she denied homosexual tendencies or acts,” is noted.  The Board also notes that there was nothing in the transcripts or in her 9 December 1982 rebuttal to show that she attempted to testify before the board and the board refused to allow her to.  The Board concludes that it was defense’s strategy not to allow her to testify and she presumably concurred in this strategy.

14.  Issues 56 and 58, that she had written to her Congressman who tried to help her but got answers from no one, is noted.  At this late date the Board can make no determination as to the facts.  Issue 59, her profile and assignment limitations, was answered in her 2 September 1999 (docket number AR1999021577) application to the Board.  Issue 60, that she did nothing wrong, is addressed in paragraph 2, CONCLUSIONS, above.  Issue 61, the character witness statements she provided, is noted.  Issue 62, her reiteration of earlier issues, is noted.  Issue 63, that her DD Form 214 be corrected to show that her service for the period 15 December 1978 through 16 November 1981 was honorable, was acted upon in her 2 September 1999 application to the Board.

15.  The Board has addressed the applicant’s 63 issues.  The Board concludes that there was no evidence at the time of the board hearing and she has provided no evidence now to overcome the conclusion that she did make and sign the      6 May 1982 Sworn Statement in which she admitted to homosexual activity.  
Therefore, she was appropriately discharged for admitted homosexual activity.

16.  However, the Board concludes that the board’s finding that the applicant engaged in homosexual activity with a subordinate was in error.  Although one witness testified that PFC A___ worked for the applicant, another witness in a 

better position to know the working relationships of the RPC (a witness hostile to the applicant) testified that they were not in a superior/subordinate position.  The Board also concludes that the grade structure of the two individuals was not so great as to presume that coercion or intimidation was involved.  The two individuals were of the same military status (enlisted), fairly close together in grade (an E-7 and an E-4 promotable), and probably even close in age.  It was not as if the applicant was a Colonel and A___ was a Private.  As CSM M___ testified, it was not unusual in that RPC for supervisors and their subordinates to get together after hours to socialize and even to get drunk together; therefore, it would not have been unusual for an E-7 and an E-4 to have a close personal relationship.  “Vindictiveness against an officer” is not a punishable offense and neither this nor off-duty conduct with other subordinates nor (poor) work performance are aggravating circumstances to be considered when determining if a discharge under other than honorable conditions is warranted.  The Board concludes that the circumstances of this case do not justify the type of discharge given.

17.  On the other hand, neither does the Board conclude that the applicant’s discharge should be upgraded to fully honorable.  The Board makes this conclusion based upon the circumstances of her departure from Germany and arrival at Fort Sheridan, IL.  

18.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the applicant concerned was given a general discharge from the Army on 10 August 1983, in pay grade E-7, under the provisions of Army Regulation 635-200, chapter 15.

2.  That the applicant be issued a General Discharge Certificate from the Army of the United States, dated 18 August 1983, denoting a general discharge in lieu of the discharge under other than honorable conditions now held by her.

3.  That the applicant be issued a new DD Form 214 reflecting the above corrections.

4.  That the applicant be paid any and all back pay due as a result of the above corrections.

5.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__aao___  __le____  __jtm___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Arthur A. Omartian
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2001055121	
SUFFIX		
RECON		
DATE BOARDED	20011127	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19830810	
DISCHARGE AUTHORITY	AR 635-200, ch 15 	
DISCHARGE REASON	A65.00	
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.