MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           12 January 2000                   
	DOCKET NUMBER:   AR1999031907

	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.

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Irene N. Wheelwright		Member	
	Mr. Luther L. Santiful		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 discharge under other than honorable conditions (UOTHC) be upgraded to honorable.

APPLICANT STATES:  That she was sexually harassed, which contributed to her inability to function; she was inadequately assisted by counsel who failed to describe the defenses available or the weakness of the (government’s) case; she was told the court-martial would result in a punitive discharge; and she was not offered medical attention after she was raped.  

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

She enlisted in the Regular Army on 12 January 1980.  She completed basic training and advanced individual training and was assigned to Company D, 503d Aviation Battalion, Germany on 3 July 1980.

On 28 July 1981, the applicant accepted non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for disobeying a lawful order by authorizing an unauthorized person to operate a U. S. Army Europe-plated vehicle.  

On 11 February 1982, the applicant accepted NJP under Article 15, UCMJ for failing to go to her appointed place of duty.

On 14 April 1982, court-martial charges were preferred against the applicant charging her with three specifications of failing to go to her appointed place of duty, behaving with disrespect towards her superior commissioned officer and disobeying a lawful order.  

On 26 April 1982, additional charges of wrongful appropriation of a privately-owned vehicle and assault were preferred against the applicant.  As a result of these additional charges, the applicant was placed in pre-trial confinement.

The applicant’s request for discharge under the provisions of Army Regulation 635-200, Chapter 10 for the good of the service in lieu of trial by court-martial is not available. 

On 14 May 1982, the appropriate authority approved the request and directed the applicant receive a discharge UOTHC.

On 28 May 1982, the applicant was discharged with a discharge UOTHC, in pay grade E-1, under the provisions of Army Regulation 635-200, Chapter 10, discharge in lieu of trial by court-martial.  She had completed 2 years, 2 months and 28 days of creditable active service and had 19 days of lost time (pre-trial confinement). 

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 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.  A discharge under other than honorable conditions is normally considered appropriate.

On 6 December 1983, the Army Discharge Review Board denied the applicant’s request for an upgraded discharge.

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.  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.

2.  Although the applicant’s request for separation is not available, it would have been a voluntary request for separation under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service to avoid trial by court-martial.  In the absence of evidence to the contrary, it is presumed the request was administratively correct and in conformance with applicable regulations. 

3.  The applicant has provided no evidence that she was sexually harassed and that such harassment contributed to her misconduct.  She has provided no evidence that she was inadequately assisted by counsel.  A court-martial could have resulted in her punitive discharge.  There is no evidence of record to show she was raped.  She could have sought medical and or counseling help on her own from medical or chaplain resources.  She provides no evidence that she attempted to do so and was denied assistance from those sources or that such denial contributed to her misconduct.

4.  The Board has taken cognizance of the applicant’s good post-service conduct and her successful service in the Army National Guard; however, neither of these factors warrant the relief requested.

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

__jns___  __inw___  __lls___  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999031907	
SUFFIX		
RECON		
DATE BOARDED	20000112	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19820528	
DISCHARGE AUTHORITY	AR 635-200, ch 10	
DISCHARGE REASON	A70.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.