IN THE CASE OF:
BOARD DATE: 7 October 2008
DOCKET NUMBER: AR20080011148
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 that her general discharge be upgraded to an honorable discharge.
2. The applicant states that she was told she could request that her discharge be upgraded 6 months after her discharge. She adds that she believes that her conduct would have improved if she had been given a transfer to another unit, but she wasnt offered such a transfer, even though she found a unit which would accept her. Therefore, she believes she wasnt given a chance at rehabilitation.
3. The applicant does not provide any additional documents in support of her request.
CONSIDERATION OF EVIDENCE:
1. The applicants military records show that she enlisted in the Regular Army on 4 April 2002 and was awarded military occupational specialty (MOS) 92G (Food Service Operations Specialist).
2. On 31 March 2006, the applicants commander notified her of his intent to recommend her separation for a pattern of misconduct. The reason for the recommendation was she was disrespectful and failed to obey a direct order from a senior noncommissioned officer and failed to report to her appointed place of duty on several occasions.
3. The applicant was provided her rights in conjunction with her commanders recommendation and while she requested consulting counsel, she waived her other rights. In her waiver statement, the applicant acknowledged that I may make application to the Army Discharge Review Board [ADRB] or the Army Board of Military Records (sic) [ABCMR] for upgrading; however, I realize that an act of consideration by either board does not imply that my discharge will be upgraded.
4. The applicants commander then forwarded his recommendation to discharge the applicant. The applicants battalion commander endorsed that recommendation, stating that the applicant had routinely disobeyed direct orders from numerous noncommissioned officers and has seen fit to both disregard their rank and duty position. The applicants battalion commander added that the applicant has been administratively moved with in (sic) HHSC to work under three different E-7s, on three different DFAC shifts. The results have been the same; a lack of due diligence and work ethic, disrespect for authority and failure to follow routine orders. Failures that have lead (sic) to her receiving multiple Company and Field Grade Articles 15. Based on the applicants lack of improvement when she was transferred within her unit under different leadership, the battalion commander stated that she believed a rehabilitative transfer was not warranted nor would it benefit the unit or the Army.
5. The appropriate authority waived the rehabilitative transfer requirement for separation for misconduct and approved the applicants commanders recommendation to discharge her for a pattern of misconduct.
6. Accordingly, on 28 July 2006, the applicant was given a general discharge.
7. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions 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.
8. On 22 May 2008, the ADRB denied the applicants request to upgrade her discharge.
DISCUSSION AND CONCLUSIONS:
1. The applicant has not submitted any documentation to show she was told her discharge would be upgraded in 6 months. To the contrary, in her waiver statement she was advised that while she could apply to have her discharge upgraded by the ADRB and the ABCMR, an act of consideration by either board does not imply that her discharge will be upgraded
2. The applicants battalion commander stated that giving the applicant a rehabilitative transfer would not be in the best interest of the unit or Army since the applicant had already been transferred to three different duty positions in different sections. Based on that assessment, the requirement to give the applicant a rehabilitative transfer was waived. The reason for the waiver of giving the applicant a rehabilitative transfer appears well justified. As such, it does not constitute grounds for upgrading a properly issued discharge.
3. In view of the foregoing, there is no basis for granting the applicants request.
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.
_________X_____________
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) AR20080011148
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ABCMR Record of Proceedings (cont) AR20080011148
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