IN THE CASE OF:	  

		BOARD DATE:	  16 November 2010 

		DOCKET NUMBER:  AR20100014350 


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.

2.  The applicant states a family emergency arose at the time and she needed to be discharged.  Her performance was satisfactory but the only way to be discharged was through a chapter 13 for unsatisfactory performance.  

3.  The applicant did not provide any evidence.

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 on 23 April 1986 and held military occupational specialty 95B (Military Police).  The highest rank/grade she attained during her military service was private first class/E-3.  She was assigned to Fort McClellan, AL.  Her records also show she was awarded the Army Service Ribbon and the Marksman Marksmanship Qualification Bar with Rifle, Grenade, and Pistol Bars. 

3.  On 21 May 1986, she accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for disobeying a lawful order.  

4.  On 9 February 1987, she departed her unit in an absent without leave (AWOL) status.  She returned to military control on 11 February 1987.  As a result, on 19 February 1987, she again accepted NJP under the provisions of Article 15 of the UCMJ for this AWOL.

5.  Her records also show during her service at Fort McClellan, AL, she was frequently counseled by several members of his chain of command for various infractions including being late to duty, personal problems affecting duty performance, absence from training, writing bad checks, and failing to maintain control of her equipment.

6.  On 27 February 1987, her immediate commander notified her of his intent to initiate separation action against her in accordance with chapter 13 of Army Regulation 635-200 (Personnel Separations) due to unsatisfactory performance with a general discharge.   

7.  On 3 March 1987, she acknowledged receipt of the commander's notification and she subsequently consulted with legal counsel.  She was advised of the bases for the contemplated separation action for unsatisfactory performance, the type of discharge she could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to her.  She elected not to submit a statement on her own behalf.  She further acknowledged she understood she might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to her and she might be ineligible for many or all benefits as a veteran under both Federal and State laws.

8.  Her immediate commander initiated separation action against her in accordance with Army Regulation 635-200 by reason of unsatisfactory performance with a general discharge under honorable conditions.  

9.  On 9 March 1987, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200 by reason of unsatisfactory performance with the issuance of a general discharge under honorable conditions.  Accordingly, she was discharged on 12 March 1987.  Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she completed 10 months and 18 days of creditable active service and she had 2 days of lost time.  

10.  There is no indication she petitioned the Army Discharge Review Board within that board's 15-year statute of limitation.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.  A general or honorable discharge was considered appropriate.

12.  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 contends her discharge should be upgraded.

2.  The available evidence shows her duty performance was tarnished by two instances of NJP, one instance of AWOL, and a history of negative counseling.  Accordingly, her chain of command initiated separation action against her.  The evidence further shows her separation processing was accomplished in compliance with applicable regulations and there is no evidence of procedural errors that would have jeopardized her rights.  Her general discharge is commensurate with her overall record of military service.

3.  Based on her record of indiscipline, 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 unsatisfactory.  Therefore, she is not entitled to an honorable discharge.


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)                                         AR20100014350



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ABCMR Record of Proceedings (cont)                                         AR20100014350



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