RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 July 2006
      DOCKET NUMBER:  AR20050014369


      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. John J. Wendland, Jr.         |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Vick                 |     |Chairperson          |
|     |Ms. Barbara J. Ellis              |     |Member               |
|     |Mr. Donald L. Lewy                |     |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 the narrative reason for her
discharge be changed from "misconduct" to "unable to cope."

2.  The applicant states, in effect, that she believes that she was not
properly represented by her chain of command because she was sexually
assaulted by a noncommissioned officer in her unit.  She adds, in effect,
that the delay in her submitting this request was due to the fact that
since her separation from the military she has been able to receive vital
counseling that has put her on the path of forgiveness for the person that
assaulted her.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 24 June 1994, the date of her discharge.  The application
submitted in this case is dated 17 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 military service records show that she enlisted in the
U.S. Army Reserve on 19 February 1991 and entered active duty in the
Regular Army for a period of 4 years on 13 March 1991.  She completed basic
combat training and advanced individual training and was awarded military
occupational specialty 31L (Wire Systems Installer).  The highest rank she
attained while serving on active duty was specialist four (E-4) and at the
time of her discharge she actually had a total of 3 years, 3 months, and 12
days of creditable active service.

4.  The applicant’s military service records contain a copy of a DA Form
2627 (Record of Proceedings Under Article 15, UCMJ), dated 4 November 1993.
 This document shows that non-judicial punishment was imposed against the
applicant for willfully and wrongfully destroying, by throwing bottles
against a wall, a bottle of wine and wooden statue, of a value of an
unknown sum, which was the property of another Soldier.  Her punishment
consisted of reduction to the grade of E-3 (suspended to be automatically
remitted if not vacated before 1 May 1994), forfeiture of $248.00 for one
month, and 14 days extra duty.  This document also shows that the
suspension of the punishment of reduction to the grade of E-3 was vacated
on 18 April 1994.

5.  The applicant’s military service records contain a copy of a DA Form
4126-R (Bar to Reenlistment Certificate), dated 14 April 1994.  This
document shows that a bar to reenlistment was imposed against the applicant
based upon her receiving an Article 15 for destruction of property and
having a record of non-payment of just debts.  The bar to reenlistment was
approved on 18 April 1994 by the lieutenant colonel in command of the 40th
Signal Battalion, Fort Huachuca, Arizona.

6.  The applicant’s military service records contain a copy of a DA Form
2627, dated 29 April 1994.  This document shows that non-judicial
punishment was imposed against the applicant for, with intent to defraud,
falsely making the signature of another Soldier as an endorsement to a DD
Form 689 (Individual Sick Slip) and failure to obey a lawful general order
issued by the Troop Medical Clinic.  Her punishment consisted of reduction
to the grade of E-2, forfeiture of $217.00 for one month, 7 days extra
duty, and 7 days restriction.

7.  On 25 May 1994, the unit commander notified the applicant that
separation action was being initiated on her under the provisions of Army
Regulation 635-200, chapter 14, for misconduct and that he was recommending
the applicant receive a general discharge, under honorable conditions.  The
reasons for the proposed action were 11 derogatory counselings for various
misconduct and
two Articles 15.  The applicant was also advised of her rights.

8.  On 26 May 1994, the applicant consulted with legal counsel and was
advised of the basis for the contemplated separation action and its
effects, and of the rights available to her.  She indicated that a
statement was submitted in her behalf and requested representation by
military counsel.  In her statement to the commander, the applicant
indicates that she believes a general discharge is too harsh for her
infractions and that she knew of other Soldiers who committed more serious
offenses that received honorable discharges.  The applicant adds that a
general discharge would impose a financial hardship on her and preclude her
from attending college; therefore, she requested an honorable discharge.


9.  The unit commander subsequently recommended her separation from service
and indicated further rehabilitative attempts would not be in the best
interest of the Army as they would not produce a quality Soldier.  The
intermediate commander reviewed the proposed discharge action and
recommended approval of the separation action with a general discharge.  On
8 June 1994, the Chief, Military Law Division, reviewed the proposed
separation action and found it to be legally sufficient for further
processing.

10.  On 10 June 1994, the separation authority waived further
rehabilitative efforts and directed that the applicant be discharged under
the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12b,
for a pattern of misconduct; directed that the applicant’s service be
characterized as general, under honorable conditions; and transfer of the
applicant to the Individual Ready Reserve.  Accordingly, the applicant was
discharged on 24 June 1994.

11.  The DD Form 214 (Certificate of Release or Discharge from Active Duty)
issued to the applicant on the date of her separation confirms that the
applicant was issued a general discharge under honorable conditions.  This
document further confirms that the authority for the applicant’s separation
was Army Regulation 635-200, paragraph 14-12b, and that the narrative
reason for her separation was misconduct.  It further shows that, based on
the authority and reason for her separation, she was assigned a Separation
Program Designator (SPD) code of JKA.

12.  In September 1994, the applicant submitted a DD Form 293 (Application
for the Review of Discharge or Dismissal from the Armed Forces of the
United States) to the Army Discharge Review Board (ADRB).  On 20 November
1996, the ADRB determined that the applicant’s discharge was proper and
equitable and it voted to deny the applicant’s request for an upgrade of
her discharge.

13.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel)
sets forth the policy for the separation of enlisted personnel.  Chapter 14
establishes policy and prescribes procedures for separating members because
of misconduct.  Specific categories include minor disciplinary infractions,
a pattern of misconduct, commission of a serious offense, conviction by
civil authorities, desertion or absence without leave.  Action will be
taken to separate a member for misconduct when it is clearly established
that rehabilitation is impracticable or is unlikely to succeed.

14.  Army Regulation 635-200, paragraph 3-3, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a Soldier whose military record is
satisfactory, but not sufficiently meritorious to warrant an honorable
discharge.  A characterization of under honorable conditions may be issued
only when the reason for the Soldier's separation specifically allows such
characterization.

15.  Army Regulation 635-200, paragraph 3-7, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality of the member’s service generally has met the standards of
acceptable conduct and performance of duty for Army personnel, or is
otherwise so meritorious that any other characterization would be clearly
inappropriate.  Whenever there is doubt, it is to be resolved in favor of
the individual.

16.  Army Regulation 635-5-1 (SPD Codes), in effect at the time of the
applicant's discharge, provides the specific authorities (regulatory or
directive), reasons for separating Soldiers from active duty, and the SPD
codes to be entered on the DD Form 214.  This regulation identifies the SPD
code of JKA as the appropriate code to assign Soldiers separated under the
provisions of paragraph 14-12b, Army Regulation 635-200, by reason of
misconduct.  This Army regulation is absent an entry of "unable to cope" as
a narrative reason for separation.

17.  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.  The U.S. Court of Appeals, observing
that applicants to the ADRB are by statute allowed 15 years to apply there,
and that this Board's exhaustion requirement (Army Regulation 15-185,
paragraph 2-8), effectively shortens that filing period, has determined
that the 3 year limit on filing to the ABCMR should commence on the date of
final action by the ADRB.  In complying with this decision, the ABCMR has
adopted the broader policy of calculating the 3-year time limit from the
date of exhaustion in any case where a lower level administrative remedy is
utilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the narrative reason for her discharge
should be changed from "misconduct" to "unable to cope" because she was not
properly represented by her chain of command when she was sexually
assaulted by a noncommissioned officer in her unit.  However, she provides
insufficient documentary evidence in support of her claim.

2.  There is no evidence in the available records that supports the
applicant’s contention that she was not properly represented during the
processing of her discharge.  To the contrary, the evidence of record shows
that the applicant was afforded and took advantage of the opportunity to
meet and consult with legal counsel for advice and that she submitted a
statement on her own behalf to her commander.  Moreover, there is no
evidence in the applicant's statement, separation action, or in her
military service records that shows that she was sexually assaulted by a
noncommissioned officer; or any other Soldier or individual.  Therefore,
there is insufficient documentary evidence to support the applicant's claim
in this case.

3.  The evidence of record shows that the applicant had two Articles 15,
11 derogatory counselings, and a bar to reenlistment imposed against her
during the period under review.  The applicant's discharge document shows
that she completed 3 years, 4 months, and 12 days of active service, but
she did not meet the standards of acceptable conduct and performance of
duty for Army personnel during this period.  The evidence of record also
shows that Army regulatory guidance does not provide for an entry of
"unable to cope" as a narrative reason for separation.  Moreover, the
applicant's DD Form 214 correctly shows the narrative reason for separation
as "misconduct."  Therefore, the applicant is not entitled to correction of
the narrative reason for separation that is shown on her DD Form 214.

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 exhausted her administrative remedies in
this case when her case was reviewed by the ADRB on 20 November 1996.  As a
result, the time for the applicant to file a request for correction of any
error or injustice to this Board expired on 19 November 1999.  However, the
applicant did not 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

__JEV___  __BJE___  __DLL__  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.




                                  ____James E. Vick_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050014369                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060719                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19940624                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chapter 14                  |
|DISCHARGE REASON        |Misconduct                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |144.0000.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]