RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            16 MAY 2006
      DOCKET NUMBER:   AR20050006512


      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. Jessie B. Strickland          |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Bernard Ingold                |     |Chairperson          |
|     |Mr. Frank Jones                   |     |Member               |
|     |Ms. LaVerne Douglas               |     |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 that the separation code on her DD Form 214 be
changed to a more favorable code that will allow her to receive separation
pay.

2.  The applicant states, in effect, that her separation code should be
changed so as to allow her to receive the separation pay to which she was
entitled.

3.  The applicant provides no additional supporting documents with her
application.

CONSIDERATION OF EVIDENCE:

1.  She enlisted in the Regular Army on 14 February 1997 for a period of 5
years and training as an air traffic control operator.  At the time of her
enlistment, she indicated that she was married and she listed no children.

2.  She completed her basic combat training at Fort Jackson, South
Carolina, and her advanced individual training (AIT) at Fort Rucker,
Alabama.  Upon completion of her AIT she was transferred to Fort Drum, New
York.

3.  On 23 March 1999, while serving in the pay grade of E-3, she extended
her enlistment for a period of 4 months to meet the service remaining
requirements for a with dependents tour in Germany.  She departed for
assignment to Germany on 14 April 1999.

4.  On 17 May 2002, while serving in the pay grade of E-4, the applicant
was transferred to Fort Jackson, South Carolina, to undergo mandatory
training and reclassification as an administrative specialist.  She
completed her training and was transferred to Fort Stewart, Georgia.

5.  On 10 October 2002, she reenlisted for a period of 3 years and
assignment to Fort Huachuca, Arizona.  At the time of her reenlistment, she
indicated that she had a son (2 years of age) and two daughters (4 and 8
years of age).

6.  On 19 February 2003, she was deployed to Southwest Asia in support of
Operation Enduring/Iraqi Freedom and remained there until 2 August 2003,
when she was deployed back to Fort Stewart.

7.  The facts and circumstances contained in the available records, though
somewhat incomplete, show that on 26 September 2003, the applicant’s
commander notified her that he was initiating action to separate her from
the service under the provisions of Army Regulation 635-200, chapter 14,
due to misconduct.  He cited as the basis for his recommendation that the
applicant had made disrespectful remarks towards a superior commissioned
officer and Noncommissioned Officer, that she had missed movement, that she
had disobeyed a direct order to submit a viable family care plan, and that
she was neglectful in the care of her children.  He advised her of her
rights in the matter and informed her that she had the right to a hearing
before an administrative separation board because she had 6 or more years
service.  He also advised her that failure to acknowledge the notification
and return it within 7 days would constitute a waiver of her rights in the
matter.  There is not a copy of the acknowledgement in the available
records.  However, it appears that the commander used the wrong letter
format to effect notification.  Instead of advising her that the lowest
discharge she could receive was a general discharge, he used the format
used for discharges under other than honorable conditions.  However, he did
indicate that he was recommending that she receive a general discharge.

8.  On 29 September 2003, charges were preferred against the applicant for
one specification of behaving disrespectfully towards a superior
commissioned officer, one specification of behaving disrespectfully towards
a superior noncommissioned officer and two specifications of communicating
a threat.

9.  On 8 October 2003, the applicant was convicted by a summary court-
martial of all of the charges against her.  She was sentenced to a
reduction to the pay grade of E-1, a forfeiture of pay (suspended until 6
March 2004) and confinement for 30 days.  The applicant appealed her
punishment and her appeal was denied on 14 October 2003.

10.  On 14 October 2003, the brigade commander approved the recommendation
for discharge and directed that she be furnished a General Discharge
Certificate.

11.  On 14 November 2003, she was discharged under honorable conditions
under the provisions of Army Regulation 635-200, paragraph 14-12c, for
misconduct.  She had served 6 years, 9 months and 1 days of total active
service.

12.  On 5 July 2004, she applied to the Army Discharge Review Board (ADRB)
for an upgrade of her discharge.  She contended that her discharge was
improper because she had already been punished for the offenses and a
discharge was too harsh a punishment under the circumstances.  She also
contended that she should have received an administrative hearing and
indicated that she had already had a discharge approved for parenthood 6
months prior.  She further stated that the officers and noncommissioned
officers lied at the court-martial.

13.  The ADRB opined that because the applicant had over 6 years, she
should have been afforded a hearing before a board of officers and that the
proper approval authority was the general court-martial convening authority
instead of the special court-martial convening authority that approved the
discharge.  The ADRB voted unanimously to upgrade her discharge to fully
honorable under Secretarial Authority on 17 December 2004.  Accordingly,
she was issued a new DD Form 214 and an Honorable Discharge Certificate.
Her separation code was changed to “JFF” to coincide with the new authority
for separation, Army Regulation 635-200, paragraph 5-3, Secretarial
Authority.

14.  In the processing of this case, a staff member contacted the brigade
commander who approved the applicant’s separation proceedings.  He
remembered the applicant and stated that he became the separation authority
once the applicant waived her right to a board.  He also stated that he
remembers that she just wanted to get out as soon as possible.  He also
advised the staff member to contact the company commander, who was still at
Fort Stewart.

15.  A staff member of the board contacted the company commander at Fort
Stewart, who also remembered the applicant and her case.  He also confirmed
that he remembered that the applicant had waived her right to an
administrative separation board.

16.  Further review of the available separation proceedings shows that at
the time the special court-martial convening authority approved the
separation proceedings, he also indicated that he was approving a
conditional waiver, which indicates that the applicant agreed to waive her
right to appear before an administrative separation board in return for a
discharge no lower than a general.

17.  Department of the Army Circular 635-92-1 outlines the eligibility
criteria for separation pay entitlements.  Table E-2 provides, in pertinent
part, that personnel discharged under the provisions of Army Regulation 635-
200, paragraph 5-3, Secretarial Authority, may be authorized one-half
separation pay.  Eligibility will be determined on a case-by-case basis.
That regulation also provides that the Secretary of the Army may make a
determination that the conditions under which the Soldier is separated does
not warrant separation pay.

18.  Army Regulation 635-200, Personnel Separations, provides the
authorities that are authorized to order separations prior to the
expiration of term of service.  Paragraph 1-21 provides, in pertinent part,
that commanders who are special court-martial convening authorities are
authorized to order the separation or release from active duty under
Chapter 14 when a discharge under other than honorable conditions is not
warranted and the notification procedure is used.  An Honorable discharge
may be ordered only when the commander exercising general court-martial
jurisdiction has authorized the exercise of separation authority in the
case.

19.  That regulation also provides that an honorable discharge is a
separation with honor.  The honorable characterization is appropriate when
the quality of the Soldier’s service generally has met the standards of
acceptable conduct and performance of duty for Army personnel.  A general
discharge is issued to a Soldier whose military record is satisfactory but
not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record clearly shows that the applicant was properly
advised of her rights by her commander at the time he notified her that he
was initiating separation actions under the provisions of Army Regulation
635-200, chapter 14. That notification included the fact that she was
entitled to appear before an administrative separation board.  She was also
informed that she had 7 days to in which to acknowledge the notification
and to make her elections and that failure to comply would result in a
waiver of her rights.  The commander also informed the applicant at the
time that he was recommending that she receive a General Discharge
Certificate.

2.  The available records do not contain a copy of the applicant’s
acknowledgement/elections and the applicant has not provided any evidence
to show that she was denied the opportunity to appear before an
administrative separation board.  Therefore, absent such evidence, it must
be presumed that the applicant waived her right to appear before a board.

3.  Although it appears that the wrong notification letter was used to
notify her of the separation action that was being initiated, which
mandated that the general court-martial convening authority act on the
case, the fact that the brigade commander approved the separation instead
of the commanding general does not negate the underlying misconduct that
led to her separation.  In fact, because the brigade commander acted on her
case, she was guaranteed to receive no worse than a general discharge.
However, had the general court-martial convening authority acted on her
case, he could have directed a discharge under other than honorable
conditions.

4.  Notwithstanding the ADRB’s actions to upgrade her discharge to fully
honorable under Secretarial Authority, the applicant has failed to show
through the evidence submitted with her application or the evidence of
record that her separation code or the authority for her separation is
incorrect or that it warrants changing.

5.  Additionally, it appears that the applicant has received sufficient
compensation in the form of a fully honorable discharge and given her less
than stellar record of service, the applicant should not receive additional
compensation in the form of separation pay.

6.  While separation pay may be authorized for individuals discharged under
“Secretarial Authority”, it is not normally authorized for discharges
upgraded under that authority.  In this case it does not appear that her
service warrants the award of separation pay, which would also require her
transfer to the Reserve Components.

7.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___BI ___  ___FJ___  ___LD __  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.

                                  __        Bernard Ingold__________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050006512                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060516                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |20031114                                |
|DISCHARGE AUTHORITY     |AR 635-200, Para 5-3                    |
|DISCHARGE REASON        |SECRETARIAL AUTHORITY                   |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |191/SPD CODE                            |
|1.110.0200              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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