IN THE CASE OF:	 

		BOARD DATE:	       19 MARCH 2009

		DOCKET NUMBER:  AR20080010529 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that her narrative reason for separation be changed, that her Separation Program Designator (SPD) code of “JKQ” be changed, and that her Reentry (RE) code of RE-3 be upgraded.  

2.  The applicant also requests, in effect, that her separation under the provisions of Army Regulation 635-200, paragraph 14-12c (Misconduct (Serious Offense)) be voided and that she be reinstated in the Active Guard Reserve (AGR) program.  

3.  The applicant further requests, in effect, that her Record of Proceedings under Article 15, Uniform Code of Military Justice, dated 28 July 2006, be removed from her records. 

4.  The applicant states, in effect, that she would like her discharge changed because she applied to the Army Discharge Review Board (ADRB) and the board members voted to only change her character of service from under other than honorable conditions (UOTHC) to honorable.  The ADRB also determined that proper discharge and separation procedures were not followed.  She states that the entire discharge process was a "reprisal" based on her contact with her congressman in reference to the issues she had with the leaders of her company.  She also states she was not placed in a protection program even after she addressed her concern of retaliation with her supervisors at that time.  She continues to state that the narrative reason for separation, separation code, and reentry code are all relevant to one another.  If the discharge procedures were not properly followed then this was an error on the chain of command.  Since the ADRB and the legal counsel assigned to her determined that proper discharge procedures were not followed, the discharge should have been thrown out.  She states she was never counseled on separation procedures and all of her rights were violated.  

5.  The applicant contends that the legal errors of the chain of command were not addressed even after receiving guidance from legal counsel.  She states the harassment started the first week of assignment to the 655th Transportation Company.  She alleges she was falsely accused of forging documents in her AGR packet.  She was harassed and accused on a daily basis until the time of separation.  She was given an Article 15 in July 2006 for being absent without leave (AWOL), but she was not AWOL.  On 24 March 2006, she was called by Sergeant First Class (SFC) M___ and was informed that there was a battalion meeting on 25 March 2006.  She explained to SFC M____ that if she could find childcare for her newborn in such short notice, she could attend the meeting.  She states that the 655th Transportation Company was aware she took two weeks of personal leave in conjunction with her maternity leave because her child would not have a "spot" at the Child Development Center (CDC) until 27 March 2006.  She heard about the Article 15 in May [2006], but she did not receive it until August [2006].  She would like the Article 15 thrown out because it was not a drill weekend and she never received orders to go to the battalion in Jackson, Tennessee.  She states that she was at home, but the unit did not contact her.  She references letters from SFC M_____ , SFC W______,  and SFC P______ which attest that this was a false report of AWOL.  

6.  The applicant states there is also an accusation of her fraudulently reenlisting on 18 August 2005.  She references an email from the enlistment team at the Human Resources Command, St. Louis (HRC-STL) which notifies her chain of command she was eligible to reenlist at the time of submission.  Therefore, the reenlistment was valid.  The command inquired about the Article 15 she received in 2003 and stated her reenlistment was fraudulent because she needed a waiver.  She alleges she was never counseled by her command at any time nor was she told verbally not to reenlist.  Her separation action indicated that she intentionally concealed the fact she had a warrant for her arrest when she applied for the AGR program.  She provided documentation through her chain of command to show the case was dismissed without prejudice.  She states that another reason listed for separation was the Article 15 she received in 2003.  The days of lost time on her DD Form 214 were for her convalescent leave due to her surgery from 28 August 2006 through 28 September 2006.  She provided all the items requested by her supervisor in reference to her time off for her surgery. The command informed her that she did not notify them of her surgery, which she states is not a true statement.
7.  The applicant continues to state that she had to seek therapy from a psychiatrist to help her deal with the stress and depression which affected her and her children.  She states that everything that was done to her was based on a personal dislike for her from the Unit Administrator, C____ A____.  She further alleges that her rights were violated because she was forced to do a new family care plan and was not given the thirty days to comply.  Her leave was not going to be approved if she did not bring the family care plan to the unit.  She provided documents which show the dates of her initial counseling on 26 February 2006 and the date the commander signed the plan on 2 March 2006.  She was treated for conditions from stress and she went to the emergency room for chest pain several times.  

8.  The applicant states she was never provided an opportunity for rehabilitation in accordance with Army regulations for separation procedures.  She was detailed to the 398th Chemical Company on 5 September 2006.  Initially her detail was 179 days; however, she was told on 18 October 2006 to immediately report back to the 655th Transportation Company.  She further alleges that she was never counseled by her chain of command that she was being considered for separation.  The applicant states that her character as a noncommissioned officer was affected and these problems came about when she was with the 655th Transportation Company.  When she was assigned to the 467th Engineer Battalion and the 398th Chemical Company, she did not have any problems.  

9.  The applicant provides the documents as listed under the Table of Contents in support of her application.  

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve on 6 December 1996.  She was ordered to active duty for training on 9 January 1997.  At the completion of active duty for training, she was awarded military occupational specialty (MOS) 77F (petroleum supply specialist).  

2.  She was ordered to active duty in the AGR program on 12 January 2003.  She was awarded primary MOS 42A2O (Human Resources Specialist) and promoted to sergeant, E-5 effective 1 September 2004.

3.  On 18 August 2005, the applicant submitted a DA Form 4187 (Personnel Action) (TAB F) for reenlistment in the U.S. Army Reserve and continuation in the AGR program.  This form included the statement "I certify that the soldier meets the qualification for subsequent duty in the AGR Program per AR 135-18, Table 2-4 and the basic reenlistment eligibility criteria per AR 140-111, table 2-1.  The soldier meets the qualifications of MILPER Message 04-353 and future MILPER Messages directing changes of paragraphs 6 and 7 (if applicable)."  This form also included the statement "soldier has been counseled concerning reenlistment/continuation in the AGR Program…"  The Commander/Authorized Representative recommended approval and signed the document.  

4.  On an unknown date, the applicant was accused of committing larceny in a building (TAB H).  The prosecuting official filed a motion for a nolle presequi [Latin legal phrase meaning "do not pursue"] at the State of Michigan, Judicial Court, Circuit Court on 27 September 2005 by reason of a plea agreement.  The motion was granted and the applicant's case was dismissed without prejudice.  The document submitted by the applicant states that a "plea agreement" was the reason for the motion.  Said agreement is not included in the file.  

5.  The applicant’s DD Form 4/1 (Enlistment/Reenlistment Document) shows she reenlisted in the Army Reserve in MOS 42A on 18 October 2005 for a period of six years in pay grade E-5 (TAB F).  

6.  On 26 February 2006, the applicant received Family Care Plan counseling from her commander.  She completed her DA Form 5305 (Family Care Plan) on 2 March 2006 (TAB J).

7.  The applicant's DA Form 31 (Request and Authority for Leave), dated 7 March 2006, shows she was on ordinary leave from 8 March 2006 to 24 March 2006 (TAB E).  

8.  On 26 April 2006, the applicant received a Memorandum of Reprimand (MOR) for violating an order given by a superior noncommissioned officer prohibiting the use of alcohol during the Battle Assembly from 3 to 5 February 2006 at Camp McCain, Mississippi.  The memorandum was administrative and not imposed as punishment under the provisions of Article 15, Uniform Code of Military Justice.  The MOR does not include the signature of the commanding officer (TAB N).

9.  On 28 July 2006, the applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice for the following offenses: (1) being AWOL from her unit from 25 March to 27 March 2006;         (2) making a false official statement to a staff sergeant by stating, “I talked with CSM H____ and he said that I did not have to attend the conference”; (3) making a false official statement to a second lieutenant on two separate occasions by stating, “I am at the emergency room sick” and “I have a doctor's note in my friend's car, I have to meet him to get it”; (4) disobeying a lawful order from a master sergeant to report to the battalion conference on 25 March 2006 at 0730 hours; and (5) providing a false doctor’s memorandum dated 26 March 2006, that was signed by a medical doctor (YELLOW TAB).  

10.  The applicant did not demand trial by court-martial.  At the Article 15 proceedings, she requested a closed hearing and elected to present matters in person.  Her punishment consisted of a reduction to the rank and pay grade of specialist, E-4 and a forfeiture of $1,009.00 for 2 months.

11.  The imposing commander directed that the original DA Form 2627 (Record of Proceedings under Article 15) be filed in the performance portion of the applicant's Official Military Personnel File.  The Record of Proceedings show the applicant elected not to appeal the punishment and she refused to sign the proceedings.  

12.  On 29 August 2006, the applicant submitted a Leave Request/Authorization Form for sick leave for a period of 30 days from 29 August 2006 to 27 September 2006 (TAB G).  This document did not include a Leave Control Number.  

13.  An undated document (Surgery Instructions) shows the applicant was scheduled for surgery on 28 August [2006] at St. Francis Hospital (TAB G). 

14.  A Personnel Action, dated 29 August 2006, shows the applicant was in an AWOL status on 28 August 2006.  The Personnel Action indicated the applicant had been absent without authority from her place of duty in excess of 24 hours and that she was at her home of record during this period of AWOL.  The commander determined the applicant’s absence was misconduct.  The applicant scheduled and received elective, cosmetic surgery without approval of the unit commander and did not provide the unit commander (or commander’s representative) with advance notification that she was receiving elective, cosmetic surgery and she did not coordinate in advance with the unit commander to receive time off for surgery or recovery.  The applicant was previously counseled on procedures for elective surgery around January 2003.  The authorized representative indicated the applicant’s duty status change had been verified and was approved (YELLOW TAB).  

15.  A Disability Certificate, dated 26 September 2006, from the Clinic of Plastic Surgery, Memphis, TN shows the applicant had been under professional care of a physician and was totally incapacitated from 28 August to 16 October 2006 (TAB G).  

16.  A Personnel Action, dated 29 September 2006, shows the applicant reported for duty on 29 September 2006 (YELLOW TAB).

17.  On an unknown date, the applicant’s unit commander notified her of pending separation action under the provisions of Army Regulation 635-200, paragraph 14-12c for commission of a serious offense.  The unit commander indicated the following reasons for his proposed separation action:  (1) intentionally concealed the fact she had an outstanding warrant for her arrest in documents she submitted to the United States Government in support of her 2002 AGR accession packet by falsely stating she was not a fugitive from justice; (2) willfully disobeyed the lawful order of a superior noncommissioned officer by failing to report to her place of duty with the 655th Transportation Company on or about 25 to 27 March 2006; (3) disrespectful in deportment and language towards a superior noncommissioned officer on 27 March 2003; and (4) willfully disobeyed the lawful order of a superior noncommissioned officer by failing to utilize her chain of command as she had previously been ordered to do on or about 18 August 2005.  The applicant was advised of her rights.  There is no record of election of rights (TAB N). 

18.  On 25 October 2006, the applicant underwent a mental status evaluation and was psychiatrically cleared for separation.   

19.  In a 26 October 2006 memorandum, the applicant’s commanding officer indicated the notification of separation action under the provisions of Army Regulation 635-200, paragraph 14-12c was sent by FedEx to the applicant on 11 September 2006.  Her acknowledgement of receipt of the notification had not been received as of that date (YELLOW TAB). 

20.  In a 15 November 2006 memorandum, the applicant's physician stated he had been treating her for three and one-half years.  She was initially diagnosed with an adjustment disorder with depressed mood in April 2003.  The physician stated the applicant's stress factor had been a difficult relationship with her supervisor at work.  She was seen again in June 2004 and received Prozac from her primary physician.  She returned in November 2005 after difficulties at work increased.  She returned again in July [2006] because she felt overwhelmed at work (TAB K).  

21.  On 15 November 2006, the separation authority directed the applicant be separated from the U.S. Army Reserve under the provisions of Army Regulation 635-200, paragraph 14-12c with the issuance of an UOTHC discharge.  She was reduced from specialist, E-4 to private, E-1.  

22.  On 1 December 2006, the applicant underwent a separation physical examination.  

23.  The applicant was discharged from the AGR program on 29 December 2006 under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct - commission of a serious offense.  She completed 3 years, 10 months and 17 days of active military service with 33 days of lost time.  Her DD Form 214 does not list the period of AWOL from 25 March 2006 to 26 March 2006 in item 29 (Dates of Time Lost During this Period).  

24.  Her DD Form 214 for the period ending on 29 December 2006 shows she was issued a RE code of RE-3 and a SPD code of "JKQ" Misconduct (Serious Offense) (TAB B).  

25.  On 22 April 2008, the ADRB reviewed the applicant's record of service during the period of enlistment under review.  The ADRB indicated that the approving authority considered nonjudicial punishment from a prior period of honorable service in characterizing the applicant's discharge.  As a result, the ADRB determined that the applicant’s character of service was improper and voted to upgrade her UOTHC discharge to a fully honorable discharge.  The ADRB determined that the reason for discharge was proper and equitable and voted not to change it.  Her rank was restored to specialist, E-4 (TAB C).  

26.  The applicant provided letters of support from SFC W______ and SFC M____.  They stated, in effect, that the applicant was not AWOL from 25 March to 27 March 2006.  The applicant was contacted on 24 March 2006 (while she was on leave) by SFC M_____ regarding a battalion meeting held at the 342nd Quartermaster Battalion on 25 March 2006.  The applicant informed SFC M____ that she would not be able to attend unless she found childcare.  A battle assembly was not scheduled for that weekend and the applicant did report to work on 27 March 2006.  SFC W_____ believed the Article 15 for AWOL was not valid.  SFC M____ stated "I talked to Col D___ in depth about Sgt C____ and gave him my opinion of the things that were happening to her was wrong, and none of the issues were resolved unfortunately we lost a Good soldier" (TAB E).

27.  Army Regulation 635-200, effective 6 June 2005, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  Army policy states that an UOTHC discharge is normally considered appropriate, but a general discharge under honorable conditions or an honorable discharge may be granted.  

28.  Army Regulation 635-5-1 (SPD Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation shows that the separation program designator “JKQ” as shown on the applicant’s DD Form 214 specifies the narrative reason for discharge as “Misconduct (Serious Offense)” and that the authority for discharge under this separation program designator is “AR 635-200, paragraph 14-12c."  

29.  Table 2-3 (SPD/RE Code Cross Reference Table), Army Regulation 635-5 (Separation Documents) establishes RE code 3 as the proper reentry code to assign Soldiers separated under the provisions of AR 635-200, paragraph 
14-12c for misconduct - commission of a serious offense.

30.  Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes.  RE–3 applies to persons not qualified for continued Army service, but the disqualification is waivable.

31.  Army Regulation 27-10 (Military Justice), in pertinent part, provides the applicable policies for administration of nonjudicial punishment.  The regulation states that nonjudicial punishment may be imposed to correct, educate, and reform offenders whom the imposing commander determines cannot benefit from less stringent measures; to preserve a Soldier’s record of service from unnecessary stigma by record of court-martial conviction; or to further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial.  All Article 15 actions, including notification, acknowledgment, imposition, filing determinations, appeal, action on appeal,
or any other action taken prior to action being taken on an appeal, except summarized proceedings, are recorded on DA Form 2627.  The regulation also states that absent compelling evidence, a properly completed, valid DA Form 2627 will not be removed from a Soldier’s record.

32.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records) prescribes the policies governing the OMPF, the Military Personnel Records Jacket, the Career Management Individual File, and Army Personnel Qualification Records.  Paragraph 2-4 of this regulation states that once a document is placed in the OMPF, it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the ABCMR, the Department of the Army Suitability Evaluation Board (currently the Special Review Board), Army Appeals Board, Chief of Appeals and Corrections Branch of the Human Resources Command, the OMPF custodian when documents have been improperly filed, Human Resources Command as an exception, Chief of the Appeals Branch of the Army Reserve Personnel Center, and Chief of the Appeals Branch of the National Guard Personnel Center.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions regarding her discharge procedures have been carefully considered.  The available evidence does not confirm that proper discharge procedures were not followed.  The ADRB found that the approving authority considered nonjudicial punishment from a prior period of honorable service in characterizing her discharge and, as a result, determined that her character of service was improper and voted to upgrade her UOTHC discharge to a fully honorable discharge.  Therefore, there is insufficient evidence on which to base voiding her discharge under Army Regulation 635-200, paragraph 14-12c for misconduct (serious offense) and to reinstate her in the AGR program.  

2.  It is noted that the ADRB upgraded the applicant's character of service from UOTHC to fully honorable; however, the ADRB found the reason for her discharge to be proper and equitable.  As there appears to be no reason to change her reason for separation and separation code, a RE-3 is still appropriate.  

3.  The applicant's contentions regarding her period of AWOL from 25 March to 27 March 2006 were considered.  However, this period of AWOL is not recorded as lost time on her DD Form 214 in item 29.  

4.  The applicant received nonjudicial punishment imposed under the provisions of Article 15 on 28 July 2006 for being AWOL from her unit from 25 March to 27 March 2006; making a false official statement to a staff sergeant; making a false official statement to a second lieutenant on two separate occasions; disobeying a lawful order from a master sergeant to report to the battalion conference on 25 March 2006 at 0730 hours; and providing a false doctor’s memorandum dated 26 March 2006 that was signed by a medical doctor.  The imposing commander determined that it would be appropriate to place the Article 15 in the performance fiche of the applicant's OMPF.  The applicant did not request trial by court-martial and she did not appeal her punishment.  

5.  There is no evidence of record which shows the nonjudicial punishment under the provisions of Article 15 dated 28 July 2006 was filed in error or was unjust.  
6.  Army Regulation 27-10 precludes the removal of a valid DA Form 2627 from a Soldier's record without compelling evidence.  The applicant has not provided any compelling evidence to support removal of the Article 15.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  ___X_____  ___X_____  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.




      _______ _   XXX_______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080010529



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080010529



10


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1