IN THE CASE OF:	  

		BOARD DATE:	        05 MAY 2009

		DOCKET NUMBER:  AR20090001775 


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 the characterization of her service be changed to honorable and that the narrative reason for separation be changed to a more favorable reason.

2.  The applicant states that her DD Form 214 (Certificate of Release or Discharge from Active Duty) reflects that she was released from active duty (REFRAD) under honorable conditions due to unsatisfactory performance.  She desires it to reflect that she was REFRAD with a characterization of service of honorable and with a more favorable narrative reason for separation.  She goes on to state that she was never reprimanded for any reason and she was subjected to extremely oppressive and traumatic experiences that resulted in frostbite and mental and sexual abuse.  She continues by stating that she sought counseling and took medication to address psychological issues and those circumstances led to her discharge.  She further states that whenever she is asked to submit her DD Form 214 to potential employers or for various other reasons, it is noted that she did not perform satisfactorily and she cannot justify it.  She also states that the military should have considered all of the circumstances.

3.  The applicant provides no additional documents with 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.  The applicant enlisted in the Regular Army in Houston, Texas on 29 August 1985 for a period of 3 years and training as a personnel administration specialist.  She completed her basic training at Fort Jackson, South Carolina and her advanced individual training at Fort Benjamin Harrison, Indiana before being transferred to Germany on 8 January 1986.  She was advanced to the pay grade of E-3 on 1 August 1986.

3.  On 16 January 1987, the applicant was counseled by her supervisor regarding her continued display of unacceptable performance despite over 2 months of intensive counseling and therapy.  He advised the applicant that her level of performance could not be accepted as adequate and that failure to improve her performance could result in her separation from the service for unsatisfactory performance or misconduct.  The applicant was also advised that such a separation could subject her to substantial prejudice in obtaining civilian employment.

4.  On the same date, the applicant was referred for a mental status evaluation.  The examining psychiatrist opined that the applicant was suffering from an adjustment disorder in response to an identifiable stressor, which was being on active duty in the Army.  He also opined that her condition was stabilized by her current treatment but that it was not anticipated to remit until the stressor was removed.  He recommended that she be expeditiously discharged under the provisions of Army Regulation 635-200, chapter 13.

5.  On 10 February 1987, the applicant's commander notified her that he was initiating action to separate her from the service under the provisions of Army Regulation 635-200, chapter 13 for unsatisfactory performance.

6.  On 11 February 1987, after consulting with counsel, the applicant waived all of her rights and elected not to submit a statement in her own behalf.

7.  The appropriate authority approved the recommendation for separation on 4 March 1987.  He directed that she be furnished a General Discharge Certificate and that she be transferred to the United States Army Reserve (USAR) Control Group (Annual Training) to complete her remaining service obligation.

8.  Accordingly, she was REFRAD under honorable conditions on 18 March 1987, under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  She had served 1 year, 6 months, and 20 days of total active service.

9.  On 31 August 1993, she was honorably discharged from the USAR.

10.  There is no indication in the available records to show that she applied to the Army Discharge Review Board (ADRB) for an upgrade of her discharge within that board's 15-year statute of limitations.

11.  Army Regulation 635-200, chapter 13, in effect at the time, established policy and provided guidance for eliminating enlisted personnel for unsatisfactory performance and who were unsuitable for further military service.  An individual could be separated for unsatisfactory performance if it was determined that the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.  A discharge under honorable conditions is normally considered appropriate.

12.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation under the provisions of Army Regulation 635-200, chapter 13, was administratively correct and in conformance with applicable regulations with no indication of any violations of the applicant’s rights.


2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  The applicant’s contentions have been noted; however, they are not sufficiently mitigating to warrant relief when compared to her overall record of service.  Her service simply does not rise to the level of a fully honorable discharge and she has failed to show through the evidence submitted and the evidence of record that her discharge was in error or unjust.

4  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.



      ________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)                                         AR20090001775



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ABCMR Record of Proceedings (cont)                                         AR20090001775



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