IN THE CASE OF:	  

		BOARD DATE:	        30 OCTOBER 2008

		DOCKET NUMBER:  AR20080013519 


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 narrative reason for discharge be changed to "unknown."

2.  The applicant states, in effect, that she was denied a hardship discharge to be with her mother who was ill.  She contends she began acting out in order to obtain a discharge because she was young and immature and did not handle the situation well.  Since her discharge, she has married and been successful in civilian life. 

3.  The applicant provides a self-authored statement, in support of her application.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2.  On 17 April 1982, the applicant enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) for 6 years.  On 26 August 1982, she was discharged from the DEP and enlisted in the Regular Army for 4 years.  She completed the training requirements and was awarded military occupational specialty 73C (Finance Specialist). 

3.  On 24 May 1988, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being drunk on duty and failing to go at the prescribed time to her appointed place of duty.  Her punishment consisted of a reduction to private first class (PFC)/E-3, a forfeiture of one-half of 2 months of pay (1 month suspended for 120 days), and 14 days of extra duty.  

4.  On 29 June 1988, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for 3 specifications of failing to go at the time prescribed to her appointed place of duty.  Her punishment consisted of a reduction to private (PV2)/E-2, a forfeiture of one-half of 1 month of pay (suspended for 120 days), and 45 days of extra duty.  

5.  The applicant was counseled on numerous occasions for failing to go at the time prescribed to her appointed place of duty, her unwillingness to conform to standards, and constantly misrepresenting the truth.  On 5 July 1988, a Bar to Reenlistment was imposed against the applicant. 

6.  On 18 July 1988, the applicant underwent a mental status examination.  The examiner noted that the applicant's mother lived alone and her brother was in jail. Her request for a compassionate reassignment was denied.  She started acting out.  The examiner indicated that she was angry, her general appearance and demeanor was one of defiance, and that her insight and judgment were poor.  She expressed no desire to remain on active duty.  She wanted to be separated as expeditiously as possible.  She was diagnosed with occupational problems and antisocial personality traits.  She was recommended for an expeditious administrative separation because any attempt at rehabilitation would be futile.

7.  On 21 July 1988, the unit commander notified the applicant of initiation of separation action under the provisions of chapter 14-12b of Army Regulation
635-200 (Enlisted Personnel Separations) by reason of misconduct – pattern of misconduct.  

8.  On 22 July 1988, the applicant consulted with legal counsel and waived her right to an administrative separation board.  


9.  On 28 July 1988, the separating authority approved the applicant's discharge and directed that she be separated under the provisions of chapter 14-12b of Army Regulation 635-200 by reason of misconduct – pattern of misconduct with a GD.

10.  On 8 August 1988, the applicant was discharged after completing
5 years, 11 months, and 13 days of active military service in the period under review.  Her DD Form 214 shows she was discharged under the provisions of chapter 14-12b, Army Regulation 635-200 by reason of misconduct – pattern of misconduct with a GD.

11.  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 and patterns of misconduct such as frequent incidents of a discreditable nature with civil or military authorities, commission of a serious offense, and 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.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  

DISCUSSION AND CONCLUSIONS:

1.  Evidence shows that the applicant was properly and equitably discharged and the proper narrative reason for separation was provided in accordance with the regulations in effect at the time.  No evidence of arbitrary or capricious actions by the command was found.  It appears that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

2.  The applicant received NJP on 2 occasions, was continually counseled for her misconduct and was barred from reenlisting.  The evidence of record shows that the command attempted to assist the applicant in performing and conducting himself to Army standards by imposing NJP.  The applicant failed to respond appropriately to these efforts and continued to engage in misconduct.  After giving the applicant a reasonable opportunity to overcome her deficiencies, the command appropriately determined the applicant did not demonstrate the potential for further military service.

3.  The applicant's contentions were noted; however, the applicant's application for a hardship was not in the official record and the reason it was denied is not explained.  The psychiatrist noted that during her mental status examination she 
demonstrated anger and defiance over the denial of her hardship discharge, and that she displayed antisocial personality traits.  She expressed a desire for a discharge and indicated she did not want to remain on active duty.  As such, the psychiatrist recommended her for an administrative separation.

4.  The narrative reason for separation is fully supported in the official record.  Her discharge was based on her continued misconduct and she has not provided sufficient evidence to warrant a change in her narrative reason for separation.

5.  Given the above, the narrative reason for separation entered on the applicant's DD Form 214 is commensurate with the applicant's overall record of military service.  As such, the quality of her service was not consistent with the Army's standard for acceptable personal conduct and performance of duty by military personnel.    

6.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.

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)                                         AR20080013519



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ABCMR Record of Proceedings (cont)                                         AR20080013519



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