RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        2 October 2007
      DOCKET NUMBER:  AR20060013710


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Ann M. Campbell               |     |Chairperson          |
|     |Ms. LaVerne M. Douglas            |     |Member               |
|     |Mr. Jeffrey C. Redmann            |     |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 she be provided all pay due her
based on the Army Discharge Review Board (ADRB) decision that her discharge
was improper and that her eligibility for the GI Bill be reinstated.

2.  The applicant states, in effect, based on the ADRB action upgrading her
discharge to honorable and changing the authority and reason for her
separation to chapter 5, Army Regulation 635-200, Secretarial Authority,
she is entitled to back pay to include vacation pay and final pay.

3.  The applicant provides ADRB Case Report and Directive in support of her
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that she enlisted in the Regular Army and
entered active duty on 29 January 2002.  She was trained in, awarded, and
served in military occupational specialty 88M (Motor Transport Operator)
and the highest rank she attained while serving on active duty was private
first class (PFC).

2.  The applicant's record documents no acts of valor, significant
achievement, or service warranting special recognition.  He record does
reveal a disciplinary history that includes her acceptance of non-judicial
punishment (NJP) under the provisions of Article 15 of the Uniform Code of
Military Justice (UCMJ) on two separate occasions.

3.  On 8 October 2002, the applicant accepted NJP for being disrespectful
in language and deportment toward a superior noncommissioned officer (NCO)
then in the execution of her duties and disobeying the lawful order of a
superior NCO.  The resultant punishment was a reduction to private/E-2
(PV2), forfeiture of $289.00 (suspended), and 14 days of extra duty and
restriction.

4.  On 19 March 2003, the applicant accepted NJP for two specifications of
failing to go at the time prescribed to her appointed place of duty and for
assault of another Soldier.  The resultant punishment was a reduction to
private/E-1 (PV1), forfeiture of $268.00, and 14 days of extra duty.

5.  On 17 April 2003, the unit notified the applicant of his intent to
initiate action to separate the applicant under the provisions of chapter
14, Army Regulation
635-200, for a pattern of misconduct.  The unit commander indicated that
the reasons for taking the action was the applicant's disobeying a lawful
order from a superior NCO, she being disrespectful to an NCO, her assault
of another Soldier, and her failure to go to her appointed place of duty on
several occasions.  The unit commander also informed the applicant that
although his recommendation was not binding on the intermediate commander
and separation authority, he was recommending the applicant receive a
general, under honorable conditions discharge (GD).

6.  On 23 April 2003, the applicant consulted with legal counsel and was
advised of the basis for the contemplated separation and its effects and of
the rights available to her.  Subsequent to this counseling, she completed
her election of rights.

7.  On 28 April 2003, the unit commander submitted his recommendation that
the applicant be processed for separation from the United States Army prior
to her expiration of term of service (ETS) under the provisions of chapter
14, Army Regulation 635-200.

8.  On 9 May 2003, the applicant's battalion commander reviewed the
applicant's case and concurred with the unit commander's recommendation
that the applicant receive a GD.

9.  On 14 May 2003, a legal review of the applicant's separation packet was
completed by a representative from the Office of the Staff Judge Advocate
(OSJA), 21st Theater Support Command (General Court-Martial Convening
Authority (GCMCA)) for the Commander, 37th Transportation Command
(Special Court-Martial Convening Authority (SPCMCA)).  This review
determined the applicant's separation file met the procedural requirements
of
Army Regulation 635-200 and that sufficient evidence existed to support the
recommendation for separation.  It further provided the SPCM the following
options:  Approve the separation and direct the applicant's service be
characterized as general, under honorable conditions by signing the first
memorandum provided; disapprove the separation action and direct the
applicant's retention by singing the second memorandum; or forward the
separation action to the GCMCA with a recommendation that the applicant's
service be characterized as either honorable or under other than honorable
conditions (UOTHC).  The review concluded by indicating that only the GCMCA
could approve separation with an honorable discharge or refer the case to
an administrative separation board authorized to recommended an UOTHC
discharge.
10.  On 29 May 2003, the SPCMCA signed the memorandum provided by the
GCMCA's OSJA approving the applicant's discharge under the provisions of
chapter 14, Army Regulation 635-200, by reason of patterns of misconduct,
and directed the applicant receive a GD.  The SPCMCA specified that he was
taking this action under the authority granted by paragraph 1-19c, Army
Regulation
635-200.  On 6 June 2003, the applicant was discharged accordingly.

11.  On 12 July 2006, the ADRB found the applicant's discharge improper
based on it being approved by an improper separation authority, and it
voted to upgrade the applicant's discharge to an honorable discharge and to
change the authority and reason for her separation.  This decision was
based on the fact that the applicant's chain of command used improper board
notification procedures, which required GCMCA approval of the final
discharge.

12.  Title 10 of the United States Code, Section 1169 (Regular Enlisted
Members-Limitations of Discharge) states, in pertinent part, that no
regular enlisted member of an Armed Force may be discharged before his term
of service expires, except as prescribed by the Secretary concerned; by
sentence of a general or special court-martial; or as otherwise provided
for by law.

13.  Army Regulation 635-200 provides the policies and procedures for the
administrative separation of enlisted Soldiers of the United States Army.
Paragraph 1-19c contains guidance on when a SPCMCA may approve discharges.
It states, in pertinent part, that the SPCMCA is authorized to approve
separations under the provisions of chapter 14 when discharge UOTHC is not
warranted and the notification procedure is used.

14.  Paragraph 2-5 contains guidance on a waiver of the right to a hearing
before an administrative separation board.  It states, in pertinent part,
that when a a. When a soldier waives his/her right to a hearing before an
administrative board and the separation authority approves the waiver, the
case will be processed without convening a board. However, the separation
authority will be the same as if the board was held.  A Soldier may wish to
waive his/her right to a hearing before an administrative separation board
contingent upon receiving a characterization of service or description of
separation more favorable than the least favorable characterization
authorized for the separation reason set forth in the notice of separation
action.

15.  Department of Defense Instruction 1332.28 (Discharge Review Board
Procedures and Standards) issues uniform procedures and standards for the
review of discharges.  Enclosure 4 outlines discharge review standards and
Paragraph E4-2. contains guidance on the propriety of discharges.  It
states, in pertinent part, that a discharge shall be deemed proper unless,
in the course of discharge review, it is determined that an error of fact,
law, procedure, or discretion exists associated with the discharge at the
time of issuance; and that the rights of the applicant were substantially
prejudiced (such error shall constitute prejudicial error if there is
substantial doubt that the discharge would have remained the same if the
error had not been made).

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that she should be provided any pay and
allowances due based on the action of the ADRB, which upgraded her
discharge to fully honorable and changed the authority and reason to
Paragraph 5-3,
Army Regulation 635-200, Secretarial Authority.  However, there is
insufficient evidence to support this claim.

2.  Although there was an error of fact, law, procedure, or discretion made
in the processing of the applicant's discharge in that the separation was
not approved by the GCMCA, based on the applicant's extensive record of
misconduct and given the regulation grants the SPCMCA authority to approve
separations under chapter 14 when a discharge under other than honorable
conditions is not warranted, it is concluded there is not substantial doubt
that the discharge would have remained the same had the error not been
made.  Therefore, notwithstanding the ADRB action on this case, there is an
insufficient evidentiary basis to grant the requested relief in this case.


3.  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

_LMD___  __JCR___  __AMC__  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.




                                    __Ann M. Campbell___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060013710                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/10/02                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |2003/06/06                              |
|DISCHARGE AUTHORITY     |AR 635-200 C14                          |
|DISCHARGE REASON        |Misconduct                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |128.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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