IN THE CASE OF:	  

		BOARD DATE:	    23 February 2010

		DOCKET NUMBER:  AR20090005782 


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, the following corrections to her military record in two separate applications:

	a.  upgrade of her general under honorable conditions discharge (GD) to an honorable discharge (HD),

	b.  change to reason for discharge to convenience of the government,

	c.  change to reentry eligibility (RE) code to RE-1,

	d.  change to separation program designator (SPD) code, and

	e.  change to separation authority and narrative reason for separation.

2.  The applicant states, in effect, that while in the military she was raped and sexually harassed which caused her to develop depression, anxiety, sleep disorders, and a post-traumatic stress disorder (PTSD).  She contends that those conditions led to her poor attitude and behavior which ultimately led to her GD.  She further claims her discharge paperwork shows a different discharge code and that during her out-processing she was told it would take several days to correct.  Because they did not want to keep her there, she was given a DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552) so she could apply to this Board for the correction to her DD Form 214 (Certificate of Release or Discharge from Active Duty).
3.  The applicant provides a DD Form 214, separation paperwork, a self-authored statement, and numerous documents identified in item 9 and on her DD Form 149 continuation sheet 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.  The applicant enlisted in the Regular Army on 8 November 1989.  She was trained in and awarded military occupational specialty 95B (Military Police).

3.  On 6 November 1991, the applicant received a letter of reprimand for violating the company's alcohol policy.

4.  The applicant's official military personnel file contains numerous counseling statements for a number of incidents which include being disrespectful towards noncommissioned officers, creating dissension among personnel by [spreading] rumors, insubordination, and an apathetic attitude.

5.  On 2 April 1992, the applicant accepted nonjudicial (NJP) punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being derelict in the performance of her duties by failing to perform patrol duties by parking her military vehicle and going to sleep in her military vehicle.

6.  The applicant was notified of her pending separation action under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 
14-12b, pattern of misconduct.  The applicant's unit commander based his recommendation for separation on three counselings for failure to maintain military appearance, three instances of disrespect towards commissioned and noncommissioned officers, a letter of reprimand, notification of a dishonored check, Article 15, and dereliction of duty.

7.  On 14 April 1992, the applicant underwent a mental status evaluation.  The applicant's behavior was found to be normal.  She was found to be fully alert and fully oriented.  Her mood or affect was unremarkable, her thinking process was clear, and her thought content was normal.

8.  On 23 April 1992, the Staff Judge Advocate's Office found the separation action pertaining to the applicant legally sufficient.

9.  On 11 May 1992, the appropriate authority approved the separation action and directed the applicant receive a GD.  On 19 May 1992, the applicant was discharged accordingly.

10.  The DD Form 214 issued to the applicant upon her discharge shows she was separated under the provisions of Army Regulation 635-200, paragraph 
14-12b, by reason of misconduct (pattern of misconduct) and that she received a GD.  Item 25 (Separation Authority) contains the entry "Army Regulation 
635-200, paragraph 14-12c; item 26 (Separation Code) contains the entry "JKQ"; item 27 (RE Code) contains the entry "3"; and item 28 (Narrative Reason for Separation) contains the entry "misconduct - commission of a serious offense."

11.  In support of this application, the applicant provides a self-authored statement which essentially states her discharge should be upgraded because she was raped and sexually harassed and as a result of those episodes, she started to suffer from depression, anxiety, difficult sleeping, migraines, and a very poor attitude which led to her other than honorable discharge.

12.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of her discharge within its 15-year statute of limitations.

13.  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, 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 GD if such is merited by the Soldier's overall record.  Only a general court-martial convening authority may approve an HD or delegate approval authority for an HD under this provision of regulation.

14.  Paragraph 3-7a of the same regulation provides that an HD 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

15.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the Reserve.  This regulation provides that prior to discharge or release from active duty individuals will be assigned RE codes based on their service records or the reason for discharge.  Chapter 3 of this regulation prescribes basic eligibility for prior-service applicants for enlistment.  This chapter includes a list of Armed Forces RE codes, including Regular Army RE codes.  This regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect.

	a.  RE-3 applies to persons not qualified for continued Army service at the time of discharge, but the disqualification is waivable.

	b.  RE-1 applies to persons completing their term of service who are considered qualified to reenter the Army, so long as all other qualifications are met.

16.  Army Regulation 635-5-1 (SPD Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD code to be used for these stated reasons.  The regulation in effect at the time of her separation shows that the SPD code of JKM will be used for members separated under the provisions of paragraph 14-12b, Army Regulation 635-200, by reason of misconduct (pattern of misconduct).

17.  The DA SPD Code/RE Code Cross Reference Table states that members receiving an SPD code of JKM will be assigned an RE code of 3.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the authority and reason for separation and SPD code listed on her DD Form 214 are in error was carefully considered and found to have merit.  The evidence of record confirms the applicant's commander recommended and the separation authority approved the applicant's separation under the provisions of paragraph 14-12b, Army Regulation 635-200, by reason of misconduct (pattern of misconduct).

2.  The applicant's DD Form 214 erroneously lists the authority for her separation as paragraph 14-12c, Army Regulation 635-200; the narrative reason for her separation as commission of a serious offense; and improperly assigned her an SPD code of JKQ based on this erroneous authority and reason for separation.  As a result, it would be appropriate to amend items 25, 26, and 28 of her DD Form 214 accordingly.

3.  The applicant's contention that her discharge should be upgraded to an HD because she was raped and sexually harassed which caused her to suffer from depression, anxiety, sleep disorders, and PTSD was also carefully considered.  However, there is insufficient evidence to support this claim.

4.  The applicant's record fails to document a rape incident or any incidents of sexual harassment.  It further shows that prior to being processed for separation she underwent a mental status evaluation which determined her behavior was normal and her thinking process was clear and which confirmed she suffered from no disqualifying physical or mental condition that would have supported her separation processing through medical channels.  Therefore, it appears her separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

5.  The applicant's record of indiscipline includes NJP under the UCMJ and several counseling statements for a number of infractions.  These numerous instances of misconduct clearly diminished the overall quality of her service below that meriting a fully honorable discharge.  Further, based on the authority and reason for her discharge (Army Regulation 635-200, paragraph 14-12b, misconduct - pattern of misconduct), she was properly assigned an RE-3.  As a result, there is an insufficient evidentiary basis to support granting this portion of the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X___  ___X____  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the following entries on her DD Form 214:

	a.  item 25 - delete the current entry and replace it with the entry "Army Regulation 635-200, paragraph 14-12b";

	b.  item 26 - delete the current entry and replace it with the entry "JKM"; and

	c.  item 28 - delete the current entry and replace it with the entry "misconduct - pattern of misconduct."

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading her discharge to honorable, changing the reason for separation to convenience of the government, and changing her RE code to RE-1.



      _________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)                                         AR20090005782



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ABCMR Record of Proceedings (cont)                                         AR20090005782



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