IN THE CASE OF:	  

		BOARD DATE:	  13 August 2009

		DOCKET NUMBER:  AR20080017716 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) that was issued at the time of her discharge on 
3 November 2007, which will simply be referred to as her DD Form 214 throughout the remainder of these proceedings, be corrected to show that her rank and pay grade at the time of her discharge was specialist (SPC)/E-4 with 
6 years of service as of July 2008.  She also requests that an unspecified Korean ribbon be added to her DD Form 214.  Additionally, she essentially requests that her discharge under the provisions of paragraph 14-12b (Separation for Misconduct – Pattern of Misconduct), Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) be voided and that she be restored to active duty.  

2.  The applicant essentially states that her DD Form 214 shows that she was discharged due to behavior issues, and that she was punished for acting out due to a sexual assault involving a master sergeant (MSG) T_________.  She also states that she lost her rank, pay, and time in service, but that now that the case is closed, she wants her DD Form 214 to reflect the outcome, and that she wants everything she had before the incident happened, including her reenlistment into the Army.

3.  The applicant provides documents which have been indexed on a separate sheet in support of this application.



CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that she enlisted in the United States Army Reserve (USAR) on 23 July 2002.  She was ordered to active duty in support of Operation Iraqi Freedom on 6 October 2004, served in Iraq from 
27 November 2004 to 18 July 2005, then was honorably released from active duty on 16 November 2005.  On 20 February 2007, she enlisted in the Regular Army in the rank and pay grade of SPC/E-4 [her DD Form 214 showing that she entered active duty in the Regular Army on 28 February 2007 is in error].  She then departed for a tour in Korea in March 2007 and was assigned to the 501st Special Troops Battalion.

2.  On 24 July 2007, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for going without authority from her appointed place of duty, failing to go at the time prescribed to her appointed place of duty, willfully disobeying a lawful command from her superior commissioned officer, and for wrongfully being in the barracks room of a Soldier of the opposite gender with the door closed which amounted to failing to obey a lawful order issued by her company commander.  Her punishment consisted of a reduction in rank and pay grade from SPC/E-4 to private (PVT)/
E-1, forfeiture of $650.00 pay per month for 2 months, extra duty for 45 days, and restriction for 45 days.  The applicant appealed, but on 30 August 2007 her appeal was denied.

3.  Information in the applicant's OMPF revealed that a U. S. Army Criminal Investigation Command (USACIDC, also known as CID) Report of Investigation established probable cause that she committed Basic Allowance for Housing (BAH) fraud and larceny of Government funds when she received BAH totaling $12,742.20 and failed to support her dependent, and that she committed the offense of making a false statement.  The record is silent as to any punishment imposed on the applicant as a result of this CID investigation.

4.  Information in the applicant's OMPF also revealed that her commanding officer stated that the applicant had violated several direct orders, had lied about her marital affairs, and was suspected of committing adultery.  There is also evidence that the applicant cashed a personal check in the amount of $3,200.00 on 31 July 2007 which was subsequently returned due to insufficient funds.

5.  On 19 September 2007, the applicant's commanding officer informed her that she was initiating action to separate her for a pattern of misconduct under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), Chapter 14 (Separation for Misconduct), Paragraph 14-12b (Pattern of misconduct).  The reasons for her proposed action were the applicant's repeated acts of disrespect towards a noncommissioned officer, failure to obey a lawful general order, and failing to report to her appointed place of duty.  She also advised the applicant of her rights.

6.  Also on 19 September 2007, the applicant acknowledged that she had been advised by her consulting counsel of the basis for the contemplated action to separate her for a pattern of misconduct under the provisions of Army Regulation 635-200, Chapter 14, Paragraph 14-12b and its effects; of the rights available to her; and the effect of any action taken by her in waiving her rights.  Although she indicated that statements in her own behalf would be submitted within 7 days, no statement was contained in her separation packet.  She also requested consulting counsel and representation by military counsel.  She acknowledged that she understood that she could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to her.  

7.  On 3 October 2007, the proper separation authority approved the applicant's discharge under the provisions of Chapter 14, Paragraph 14-12b, Army Regulation 635-200, and directed that she receive a General Discharge Certificate.  On 3 November 2007, the applicant was discharged accordingly.
Her DD Form 214 shows that she was awarded the National Defense Service Medal, the Global War on Terrorism Expeditionary Medal, the Global War on Terrorism Service Medal, the Korea Defense Service Medal, the Army Service Ribbon, and the Armed Forces Reserve Medal with "M" (for Mobilization) Device. This document also shows that her rank and pay grade was PVT/E-1 and that her date of rank was 24 July 2007.  Additionally, this document shows that she completed 8 months and 6 days of active duty service from 28 February 2007 to 3 November 2007, and that she had 1 year, 1 month, and 11 days of prior active service and 3 years, 5 months, and 16 days of prior inactive service.

8.  The applicant provided 57 pages of correspondence from the U.S. Army Crime Records Center regarding a Report of Investigation in which the applicant made a report on 12 October 2007 that a MSG T_________ has sexually assaulted her in late March 2007.  The Report of Investigation shows that it was determined that MSG T_________ committed indecent assault and cruelty and maltreatment against the applicant, but that MSG T_________ did not commit the offense of attempted forcible sodomy.  A review of MSG T_________'s OMPF revealed that he received a General Officer Memorandum of Reprimand (GOMOR) on 21 March 2008 for choosing to conduct inappropriate late night room inspections in the applicant's and her roommate's barracks room without an escort in March 2007 and for demonstrating a lack of judgment and professionalism.  

9.  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 included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and absences without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  Army policy states that a discharge under other than honorable conditions is normally considered appropriate, but a general discharge under honorable conditions or an honorable discharge may be granted.  

10.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her DD Form 214 should be corrected to show that her rank and pay grade at the time of her discharge was SPC/E-4 with 
6 years of service as of July 2008.  She also contends that an unspecified Korean ribbon should be added to her DD Form 214, and that her discharge under the provisions of paragraph 14-12b, Army Regulation 635-200 should be voided and that she be restored to active duty.  

2.  The applicant's contention that her DD Form 214 shows that she was discharged due to behavior issues was considered, but found to lack merit.  Her DD Form 214 clearly shows that she was discharged under the provisions of paragraph 14-12b, Army Regulation 635-200, which was for misconduct due to a pattern of misconduct.

3.  The fact that it appears that a MSG T_________ committed indecent assault and cruelty and maltreatment against the applicant is regrettable.  Notwithstanding this fact, the applicant's contention that she was punished for acting out due to a sexual assault involving MSG T_________ was carefully considered.  While the complete Report of Investigation was not available for review, it is noted fact that MSG T_________ received a GOMOR for his actions against the applicant.  However, MSG T_________'s actions were not sufficient justification for the applicant's numerous acts of misconduct, which included BAH fraud and larceny of Government funds, making a false statement, violating several direct orders, lying about her marital affairs, suspicion of adultery, going without authority from her appointed place of duty, failing to go at the time prescribed to her appointed place of duty, wrongfully being in the barracks room of a Soldier of the opposite gender with the door closed which amounted to failing to obey a lawful order issued by her company commander, and cashing a worthless personal check in the amount of $3,200.00 without sufficient funds to cover the check.

4.  Evidence of record clearly shows that the applicant's discharge was based on many of the aforementioned acts of misconduct, and the applicant failed to provide evidence which proves that her discharge was rendered unjustly, in error, or that there were sufficiently mitigating circumstances which warrant relief.  Evidence also shows that the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that jeopardized her rights.   As a result, there is insufficient basis for voiding her discharge and restoring her to active duty.

5.  While the applicant contends that her DD Form 214 should show that her rank and pay grade at the time of her discharge was SPC/E-4, and that she had served 6 years of service as of July 2008, the evidence shows that she was reduced from SPC/E-4 to PVT/E-1 by NJP on 24 July 2007, and her DD Form 214 correctly reflects this fact.  Had she felt that this NJP was unjust, she could have and should have demanded a trial by court-martial.  Additionally, as she was properly and equitably discharged on 3 November 2007 after completing a total of 1 year, 9 months, and 17 days of total active duty service and 3 years, 
5 months, and 16 days of prior inactive service (for a total of 5 years, 3 months, and 3 days of service), there is no basis for correcting her DD Form 214 to show that she had 6 years of service as of July 2008.  

6.  As the applicant's DD Form 214 shows that she was awarded the Korea Defense Service Medal for her service in Korea, it is unclear what "Korean ribbon" the applicant is requesting to be added to her DD Form 214.  As a result, there is insufficient basis for adding a Korean ribbon to her DD Form 214.  

7.  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

___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)                                         AR20080017716



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ABCMR Record of Proceedings (cont)                                         AR20080017716



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