IN THE CASE OF:	  

		BOARD DATE:	 26 October 2010 

		DOCKET NUMBER:  AR20100010845 


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, correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show in:

* items 4a (Grade, Rate or Rank) and 4b (Pay Grade) the entry SPC [specialist] and E-4
* item 18 (Remarks) her service in Iraq
* item 28 (Narrative Reason for Separation) a different reason for her separation

2.  The applicant states, in effect:

* She never received proper counseling
* She was advanced to SPC/E-4 on 6 July 2005
* Her narrative reason for separation is inequitable because her discharge was upgraded to honorable by the Army Discharge Review Board (ADRB)
* Her service in Iraq is not shown on her DD Form 214 because they were rushing to get her out of the Army 

3.  The applicant provides a copy of her:

* DD Form 214
* ADRB proceedings
* discharge proceedings


* enlistment contract
* Enlisted Record Brief
* service personnel records 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant's narrative reason for separation be changed. 

2.  Counsel states:

* The applicant's character of service was upgraded to honorable by the ADRB
* The incidents that led to the applicant's separation in all fairness were isolated and minor infractions
* The applicant is requesting the Board review the entire record and change the narrative reason for separation from patterns of misconduct to a reason that is less prejudicial to a young Soldier who never received proper counseling

3.  Counsel provides:

* A self-authored statement, dated 26 August 2010
* Two character reference letters

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 2 June 2003 for a period of 
6 years.  She was trained as a petroleum supply specialist and she was advanced to SPC/E-4 on 2 June 2005.  

3.  On 21 September 2005, nonjudicial punishment was imposed against the applicant under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for two specifications of failure to repair.  Her punishment consisted of a reduction to private (PV2)/E-2, a forfeiture of pay, extra duty, and restriction (suspended).

4.  On 7 November 2005, the applicant was notified of her pending separation under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12b, for misconduct (pattern of misconduct).  Her discharge packet shows she was counseled on 8 occasions during the period 28 May 2005 to 27 September 2005.  On 7 November 2005, the applicant consulted with legal counsel and she elected not to submit a statement in her own behalf.  On 9 November 2005, the separation authority approved the recommendation for discharge and directed the issuance of a general discharge.  On 23 November 2005, the applicant was discharged accordingly.

5.  Item 4a of the applicant's DD Form 214 shows the entry "PV2."  Item 4b shows the entry "E02."  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) on her DD Form 214 shows, among other awards, the Global War on Terrorism Expeditionary Medal as an authorized award.  Item 18 does not show any deployments.  Item 12h (Effect Date of Pay Grade) shows the entry "2005 09 21" [21 September 2005].  Item 25 (Separation Authority) shows the entry "AR [Army Regulation] 635-200, PARA [paragraph] 14-12B.  Item 26 (Separation Code) shows the entry "JKA."  Item 28 shows the entry "PATTERN OF MISCONDUCT.”

6.  There is no evidence of record which shows the applicant was advanced back to SPC/E-4 subsequent to 21 September 2005.

7.  Records at the Defense Finance and Accounting Service (DFAS) show the applicant received hostile fire/imminent danger pay (HF/IDP) from 20 December 2003 to 26 July 2004 for service in Kuwait.

8.  On 1 April 2009, the applicant applied to the ADRB for an upgrade of her general discharge to an honorable discharge to allow her the opportunity to reenter the Army or serve as a contractor employee.  On 29 December 2009, after carefully examining the applicant's records and hearing her testimony, the ADRB determined that her characterization of service was too harsh based on her length and quality of service and the circumstances surrounding her misconduct.  As a result, the ADRB upgraded the applicant's general discharge to honorable.  However, the Board determined the reason for discharge was proper and equitable and unanimously voted not to change it. 

9.  Counsel provided two character reference letters from a friend and fellow Soldier of the applicant.  They attest the applicant has always displayed a high degree of integrity, responsibility, and ambition.  She is a leader rather than a follower, a dependable team player, was a great Soldier, and is highly motivated.  The punishment she received was extreme.  

10.  Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative 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.

11.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It states that for an active duty Soldier deployed with his or her unit during their continuous period of active service, the statement "SERVICE IN (NAME OF COUNTRY DEPLOYED) FROM (inclusive dates for example, YYYYMMDD-YYYYMMDD)" will be entered in item 18.   

12.  Army Regulation 635-5-1 (Separation Program Designator Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation states the reason for discharge based on separation code “JKA” is “Misconduct” and the regulatory authority is Army Regulation 635-200, paragraph 14-12b.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends she never received proper counseling.  However, evidence of record shows she was counseled on 8 separate occasions during the period 28 May 2005 to 27 September 2005. 

2.  The applicant contends she was advanced to SPC/E-4 on 6 July 2005.  However, evidence of record shows she was administered a company-level Article 15 on 21 September 2005 for failing to go at the time prescribed to her appointed place of duty on two separate occasions.  As a result she was reduced to PV2/E2 on 21 September 2005 which is properly reflected in items 4a, 4b, and 12h of her DD Form 214.  Therefore, there is insufficient evidence in which to amend items 4a and 4b of her DD Form 214.

3.  The DFAS information which shows the applicant served in Kuwait/Iraq is accepted as sufficient evidence to amend item 18 of her DD Form 214 to show she served in Kuwait/Iraq from 20 December 2003 to 26 July 2004.

4.  The character reference letters submitted on behalf of the applicant fail to show that her narrative reason for separation was unjust and should be changed.

5.  The applicant contends her narrative reason for separation is inequitable because her discharge was upgraded to fully honorable by the ADRB.  However, the narrative reason for separation used in the applicant's case is correct and was applied in accordance with the applicable regulations.  Additionally, the ADRB also determined the narrative reason for her separation was both proper and equitable.  Therefore, there is no basis for granting this portion of the applicant's request.

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 adding to item 18 of her DD Form 214 the entry "SERVICE IN KUWAIT/IRAQ FROM 20031220 - 20040726."

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 amending items 4a, 4b, or 
28 of her DD Form 214.



      ___________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)                                         AR20100010845



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100010845



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1