IN THE CASE OF:	  

		BOARD DATE:	 8 July 2010 

		DOCKET NUMBER:  AR20090021494 


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 upgrade of her general discharge to an honorable discharge.

2.  The applicant states she was discharged 21 days before her active duty contract expired.  The discharge she was given was based on the fact that she did not have a family care plan (FCP) for her infant son, but she did not have any family members in the Fort Drum, NY area.  Her family was unable to provide any assistance with the care of her son due to their personal situations.  She further states that during her career in the Army she was awarded the Army Achievement Medal (AAM) for meritorious service for her performance while deployed to Iraq.  She does not believe the discharge she was given accurately reflects her entire time served in the Army.

3.  The applicant provides a memorandum for record (MFR) from CPT R--- P.
H---, dated 27 October 2007.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 13 January 2004.  She was trained in and awarded military occupational specialty 88M (Motor Transport Operator).  She reenlisted on 15 February 2006 for a period of 4 years.

2.  The record shows the applicant served in Iraq from 11 August 2005 to 19 July 2006.

3.  During the applicant's service in Iraq, she was formally counseled on the following occasions:

* on 2 June 2006 for failing to go at the time prescribed to her appointed place of duty and for failing to obey a lawful order or regulation
* on 15 June 2006 for failing to go at the time prescribed to her appointed place of duty on 14 June 2006
* on 15 June 2006 for failing to go at the time prescribed to her appointed place of duty on 15 June 2006

4.  On 24 June 2006, she accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for twice failing to go at the time prescribed to her appointed place of duty and once going from her place of duty without authority.

5.  The applicant's record includes a DA Form 4980-18 (Army Achievement Medal Certificate) showing she was awarded the AAM for meritorious service in Iraq as announced in Permanent Orders 095-054, 10th Brigade Support Battalion, 10th Mountain Division.  However, Permanent Orders 182-038, same headquarters, dated 1 July 2006, revoked Permanent Orders 095-054.

6.  After her tour in Iraq, the applicant was formally counseled on the following occasions:

* on 21 August 2006 for failing to obey a lawful order 
* on 19 September 2006 to inform her she was being ordered to reside in the barracks due to disciplinary issues
* on 25 September 2006 for reckless driving and violating the order to reside in the barracks
* on 13 October 2006 for failing to go at the time prescribed to her appointed place of duty
* on 14 October 2006 for failing to obey a direct order
* on 16 October 2006 for failing to be at her appointed place of duty, dereliction of duty, and lying to a noncommissioned officer (NCO)

7.  On 31 October 2006, she accepted NJP under Article 15, UCMJ, for twice failing to go at the time prescribed to her appointed place of duty and making a false official statement with intent to deceive.

8.  On 5 April 2007, the applicant was counseled on the need to complete an FCP and directed to submit a valid FCP by 16 April 2007.  She acknowledged she understood that failure to provide a valid FCP could result in a bar to 


reenlistment and/or separation from the military.  The record is void of documentation showing the applicant submitted a valid FCP in response to this counseling session.

9.  On 28 August 2007, the applicant was again counseled on the need to complete an FCP and directed to submit a valid FCP within 3 days of the date of counseling.  She again acknowledged she understood that failure to provide a valid FCP could result in a bar to reenlistment and/or separation from the military.

10.  On 31 August 2007, the applicant was counseled on her failure to submit an adequate FCP and informed that her chain of command was initiating separation proceedings under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), paragraph 5-8 (Involuntary Separation Due to Parenthood).  She requested [transfer to the Individual Ready Reserve (IRR)] "to rejoin at a better time in the future."

11.  In an undated memorandum, the applicant's immediate commander informed her she was initiating action to separate her for inability to produce a valid FCP and that she was recommending issuance of a general discharge.

12.  On 23 October 2007, the applicant acknowledged receipt of the notification of intent to initiate separation action and consulted with legal counsel.  She was advised of the basis for the contemplated separation action and its effect, the rights available to her, the effect of any action taken by her in waiving her rights, and the type of discharge and its effect on further enlistment or reenlistment.  The applicant understood that she could expect to encounter substantial prejudice in civilian life if she received a discharge/character of service of less than honorable.

13.  The applicant provided a statement summarizing events leading to the initiation of her separation and contended, in effect, that she had been adequately punished for indiscipline during her military service and did not deserve a general discharge.  Her statement also recounts in detail several incidents involving conflicts with NCO's in her unit, including an incident in which her behavior prompted an NCO to call the military police due to the perception that she was endangering her child.

14.  In a memorandum for the separation authority, dated 28 October 2007, the applicant stated her company commander initially recommended her for separation with an honorable characterization of service.  When her brigade deployed, her packet was forwarded to the Division [Office of the Staff Judge Advocate] and subsequently withdrawn and redrafted to amend the 


recommended characterization of service to general under honorable conditions.  She further stated no one in her rear detachment chain of command could explain the specific reasons for her separation packet being pulled back.

15.  The record is void of documentation showing the applicant was initially recommended for separation with an honorable discharge.

16.  The applicant's commander signed an MFR, dated 14 November 2007, summarizing the events leading to submission of the recommendation for the applicant's separation with a general discharge.  The MFR includes the following paragraph:

When the [applicant's unit] deployed to Iraq in early September of 2007, [the applicant] became one of my Rear Detachment Soldiers once again.  Her performance has been less than substandard since then.  She began bringing her child to PT formations and leaving him in the car, showing up in civilian clothes and getting belligerent with NCO's in her chain of command.  This prompted a look into her past performance at which time we realized that she has a history of this behavior and her legal/counseling records support these beliefs.  She has caused several incidents within the Headquarters and at one point, during counseling from an NCO on this behavior, she became so unruly she used her child as a barrier to exit an office in the headquarters.  This incident required intervention by the Military Police.

17.  The applicant's discharge packet includes two DA Forms 2823 (Sworn Statement) from NCO's confirming an incident on or about 28 September 2007 that led to intervention by the Military Police.

18.  The record is void of documentation showing the applicant was formally counseled or the subject of disciplinary action for the behavior described in her commander's MFR or the incident on or about 28 September 2007.

19.  The applicant's separation packet includes the MFR from CPT R--- P. H--- she provides with her application.  The author stated he served with the applicant during the period February 2006 to November 2006 in Iraq and that she served with honor in Iraq.  He recommended the applicant receive an honorable discharge.

20.  The separation authority approved the applicant's separation under the provisions of Army Regulation 635-200, paragraph 5-8, and directed she be discharged with a characterization of service of general under honorable conditions and not transferred to the IRR.  On 21 December 20070147892052800001, she was discharged accordingly.  She completed 3 years, 11 months, and 9 days of creditable active military service.

21.  On 29 October 2008, the Army Discharge Review Board (ADRB) informed the applicant that her application to upgrade her discharge was denied.

22.  Army Regulation 635-200 governs the separation of enlisted personnel.  Paragraph 5-8 provides for the involuntary separation of Soldiers due to parenthood when parental obligations interfere with fulfillment of military responsibilities.  A Soldier being separated under this paragraph for the convenience of the Government will be awarded a character of service of honorable, under honorable conditions, or an uncharacterized description of service if in entry-level status.

23.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to upgrade her general discharge to an honorable discharge was carefully considered and found not to be supported by the evidence.

2.  The applicant's separation due to parenthood was proper and equitable and in accordance with the regulations in effect at the time.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  Based on her record of indiscipline, which includes twice receiving NJP and counseling on numerous occasions for her personal conduct, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders her service insufficiently meritorious to warrant an honorable discharge.

4.  Based on the foregoing, there is no basis for granting the applicant's requested relief. 



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)                                         AR20090021494



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ABCMR Record of Proceedings (cont)                                         AR20090021494



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