IN THE CASE OF:	  

		BOARD DATE:	        3 September 2009

		DOCKET NUMBER:  AR20090002446 


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 an upgrade of her discharge to honorable and that the narrative reason for her separation be corrected to show other physical or mental conditions instead of misconduct (serious offense).

2.  The applicant states that her medical condition was poor because she was forced to reside in a moldy condemned building after she filed a congressional complaint requesting to be relieved from active duty.  She states her command retaliated against her by chaptering her out of the Army.  The applicant also states that she was discharged from the Army while she was an inpatient at Southside Regional Hospital.  She states her command was fully aware of her status because she was taken to the hospital and admitted while she was accompanied by a member of the command; however, the chain of command reported her being absent without leave (AWOL).

3.  The applicant provides a doctor's statement, subject:  Medical Recommendation RE: (applicant's name), dated 8 September 2005; and a defense counsel memorandum, subject:  Motion for New Administration Separation Board, (applicant's name), dated 26 April 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that after having prior active and inactive military service, the applicant enlisted in the Regular Army (RA) on 26 May 2005.  She was assigned to Fort Lee, VA to attend advanced individual training (AIT) in military occupational specialty (MOS) 92Y (Unit Supply Specialist).
2.  The applicant's Official Military Personnel File (OMPF) contains eleven
DA Forms 4856 (Developmental Counseling Form) dated between the period 8 June through 19 November 2005, during AIT.  These documents show she was counseled concerning the commander's policy on living in the barracks; her failure to pass the Army Physical Fitness Test (APFT); her failure to follow directions; her violations of Articles 92 (failure to obey a lawful order or regulation) and Article 115 (malingering) of the Uniform Code of Military Justice (UCMJ); professional growth; and her failure to report for duty.

3.  On 12 January 2006, the applicant received a twelfth DA Form 4856 from her commander.  In it, the applicant was notified that Permanent Change of Station (PCS) orders were published on 27 December 2005, reassigning her to Fort Campbell, KY with a reporting date of no later than 14 January 2006.  She was ordered to visit the appropriate travel office, to make the appropriate flight arrangements, to secure airline tickets, to provide the commander a copy of her itinerary by 1500 hours on that day (12 January 2006), to vacate the barracks, and of the possible elimination action that would be taken against her under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) if the PCS instructions are not complied with.

4.  On 23 January 2006, the commander notified the applicant that he was initiating action to separate her under the provisions of paragraph 14-12c,
Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations).  He cited the applicant's violations of Articles 90 (willful disobedience of a superior commissioned officer) and Article 91 (willful disobedience of a noncommissioned officer (NCO)) of the UCMJ as the basis for his action.  The applicant refused to sign the notification.

5.  On 27 January 2006, the applicant underwent a mental status evaluation.  The results of this evaluation showed that the applicant's behavior was suspicious, thought content was normal, she was fully alert and oriented, she had an unremarkable mood, her thinking process was clear, and her memory was good.  It was also determined that the applicant was mentally responsible, met retention requirements, and had the mental capacity to understand and participate in separation proceedings.

6.  On 8 February 2006, the applicant completed a statement indicating that the commander's adverse action taken against her was purely retaliatory and in violation of Army policy.  She also provided her rebuttal comments that pertained to the records of counseling she received.

7.  On 9 February 2006, the applicant consulted with legal counsel and she was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to her, and the effect of any action taken by her in waiving her rights.  The applicant elected to have her case considered by a board of officers, personal appearance before an administrative separation board, consulting and civilian counsel, and to submit a statement in her own behalf.

8.  On 27 February 2006, the applicant was notified to appear before an administrative separation board as she requested.  The initial board was to convene on 17 March 2006.

9.  After three postponements, the administrative separation board of officers convened to consider the applicant's case in her absence on 21 April 2006.  The applicant was not present; however, counsel for the applicant was present.  This board recommended that the applicant be eliminated from the service by unanimous vote.  The board also recommended the applicant receive an under other than honorable conditions (UOTHC) discharge.

10.  On 25 April 2006, the separation authority approved the applicant’s separation and directed that she receive a UOTHC discharge.

11.   On 28 April 2006, the applicant was discharged under the provisions of paragraph 14-12c, Army Regulation 635-200, by reason of misconduct (serious offense).  The applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) shows her service was characterized as UOTHC and based on the authority and reason for his discharge, she was assigned a separation program designator (SPD) code of "JKQ" and an RE code of "3."  Her DD Form 214 does not record any lost time.

12.  On May 2008, the Army Discharge Review Board (ADRB) voted to upgrade the characterization of the applicant’s discharge to a general, under honorable conditions discharge (GD); however, it concluded that the reason for her separation was both proper and equitable and the board voted not to change it.

13.  The applicant's OMPF contains no evidence that shows she received a disabling injury at any time during her active duty tenure that would have warranted her separation processing through medical channels.

14.  The applicant provided a doctor's statement, dated 8 September 2005, in which he confirms the applicant's chronic rhinosinusitis and allergic rhinosinusitis diagnosis.

15.  The applicant also provided a memorandum prepared by her defense counsel and herself, dated 26 April 2006.  In it, a motion for a new administrative 
separation board was made based on the applicant's hospitalization and absence from the original board.  There is no evidence that this request was ever acted upon.

16.  Army Regulation 635-200 (Personnel Separations) 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, and convictions by civil authorities.  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.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

17.  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.

18.  Army Regulation 635-5-1 (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  The SPD code of JKQ was the appropriate code for the applicant based on the guidance provided in Army Regulation 635-5-1 for Soldiers separating under the provisions of paragraph
14-12c, Army Regulation 635-200, by reason of misconduct.  Additionally, The SPD/RE Code Cross Reference Table contained in the regulation establishes RE Code 3 as the proper reentry code to assign to Soldiers separated for this reason.

19.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System and sets forth the policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Paragraph 1-5 states, in pertinent part, that a Soldier who is charged with an offense or is under investigation for an offense for which he could be dismissed or given a punitive discharge may not be referred for disability processing.  Paragraph 2-2b states, in pertinent part, that when a member is being separated by reason other than 
physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that her general discharge should be upgraded to honorable and her narrative reason for separation should be changed to reflect "other medical or mental condition" because of her poor medical condition while on active duty were carefully considered.  However, there is insufficient evidence to support this claim.  

2.  By regulation, a member must be unfit to reasonably perform the duties of his or her office, grade, rank, or rating because of physical disability in order to be considered for processing for a medical discharge through the Army PDES.  The evidence of record provides no indication the applicant suffered from a medically disqualifying condition that would have supported her separation processing through the Army PDES at the time of her release from active duty.  

3.  The evidence of record confirms the primary reason for the applicant's separation was based on her violations of Articles 90 and 91 of the UCMJ through her willful disobedience of a superior commissioned officer and her willful disobedience of an NCO.  As a result, it appears she was properly assigned an SPD code of JKQ and the narrative reason for separation of misconduct (serious offense), in accordance with the applicable regulation.  Therefore, there appears to be no error or injustice related to this matter.

4.  The applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, and her rights were fully protected throughout the separation process.  The applicant's overall record of service was appropriately recognized with the GD upgrade granted by the ADRB.  Lacking independent evidence to the contrary, it is presumed that the narrative reason for her discharge was proper and equitable.  There is also no evidence of record and the applicant did not provide any evidence that would warrant upgrading her discharge to fully honorable.  Therefore, there is no basis for warranting any further changes to her DD Form 214.



5.  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)                                         AR20090002446



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090002446



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1