BOARD DATE:	  14 January 2010

		DOCKET NUMBER:  AR20090012740 


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 general, under honorable conditions discharge (GD) be upgraded to a fully honorable discharge (HD).

2.  The applicant states, in effect, that there were extenuating circumstances between herself and the person who recommended she be discharged with a GD.  She further states that she feels her GD was extreme and inappropriate.

3.  The applicant provides no documentation 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's records show she enlisted in the Regular Army and entered active duty on 24 July 1981.  It also shows she was trained in, awarded and served in military occupational specialty 76Y (Unit Supply Specialist).  

3.  The applicant's record further shows she was promoted to sergeant 
(SGT)/E-5 on 1 June 1985, and that this is the highest rank she attained while serving on active duty.  It also shows she was reduced to specialist (SPC)/E-4 for cause on 30 August 1985.  

4.  The applicant's record also shows that during her active duty tenure, she earned the following awards:  Army Achievement Medal, Army Good Conduct Medal, Army Service Ribbon, and Marksman Marksmanship Qualification Badge with Rifle Bar.  Her record documents no acts of valor. 

5.  On 11 January 1985, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being derelict in the performance of her Charge of Quarters duties.  Her punishment for this offense was 14 days extra duty and a forfeiture of $200.00 (suspended 90 days).

6.  On 9 July 1985, the unit commander prepared a Bar to Reenlistment Certificate on the applicant citing the applicant's receipt of an Article 15 for dereliction of duty as the reason for the action.  On 30 July 1985, the appropriate authority approved the bar to reenlistment.

7.  On 30 August 1985, the applicant accepted NJP for stealing an egg poacher valued at $6.40 by purchasing it with unit designated funds from the Self-Service Supply Center with the sole purpose of being for her own personal use; and for being derelict in the performance of her Charge of Quarters duties.  Her punishment for these offenses was reduction to specialist (SPC).E-4, a forfeiture of $50.00 per month for two months (1 month suspended for 90 days), and 14 days of extra duty. 

8.  On 4 October 1985, the unit commander notified the applicant of his intent to initiate separation action on the applicant under the provisions of chapter 14, Army Regulation 635-200 (Personnel Separations), by reason of patterns of misconduct.  The unit commander cited the applicant's continued attitude degradation, negligence of duty, substandard job performance, and continuous disciplinary problems, as evidenced by two Article 15's, bar to reenlistment and numerous counseling statements as the basis for taking the action.  


9.  On 4 October 1985, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation, its effects, and of the rights available to her.  Subsequent to this counseling, the applicant waived her right to have her case considered by a board of officers and submitted a statement in her own behalf.  

10.  On 10 October 1985, the applicant submitted a statement in her own behalf, in which she requested that she not be separated from the Army prior to her normal expiration term of service date in October 1987.  She stated that during her assignment to her unit, she passed two Inspector General (IG) inspections and had passed two Skill Qualification Tests (SQTs), which left little doubt as to her ability.  She admitted that things had not gone smoothly since January 1985; however, she noted that she had been promoted after receiving her first Article 15 and that both Article 15's she received were filed in the restricted portion of her Official Military Personnel File (OMPF).  She further stated that things quickly deteriorated after she requested reassignment from her unit and led her to the hasty decision to request resignation under the provisions of chapter 16, Army Regulation 635-200.

11.  On 22 October 1985, the separation authority approved the applicant’s separation and directed that she receive a GD.  On 25 October 1985, the applicant was discharged accordingly.  

12.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant upon her discharge on 22 October 1985, shows she was separated under the provisions of paragraph 14-12b, Army Regulation 635-200, by reason of misconduct – pattern of misconduct.  It also shows that at the time, she had completed a total of 4 years, 3 months, and 2 days of creditable active military service and that she held the rank of SPC.

13.  On 6 April 1987, the Army Discharge Review Board (ADRB), after careful consideration of the applicant's military records and all other available evidence determined that she had been properly and equitably discharged, and it voted to deny her request for a change to the characterization of her service and/or to the reason of her separation.  

14.  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.  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 or honorable discharge if such is merited by the Soldier’s overall record of service.

15.  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 contention that her GD should be upgraded to an HD because there were extenuating circumstances between her and the person who recommended her discharge was carefully considered.  However, there is insufficient evidence to support this claim. 

2.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  Although the authority and reason for the applicant's discharge authorized the imposition of an under other than honorable conditions discharge, the separation authority granted the applicant a GD based on her overall record of service.  The applicant’s disciplinary history, which included her acceptance of two Article 15's and a bar to reenlistment, clearly diminished the overall quality of her service below that meriting the issue of an HD by the separation authority at the time of her discharge, or an upgrade of her discharge now. 

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)                                         AR20090012740



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ABCMR Record of Proceedings (cont)                                         AR20090012740



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