IN THE CASE OF:	  

		BOARD DATE:	  9 November 2010

		DOCKET NUMBER:  AR20100014505 


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 reconsideration of her earlier request for correction of her records as follows:

* upgrade her general discharge to a fully honorable discharge
* change the separation authority from chapter 14 to an appropriate authority
* change the separation code from "JKQ" to a more favorable code
* change her reentry eligibility (RE) code from "3" to "1"
* change the narrative reason for separation from "misconduct - pattern of misconduct" to "convenience of the government"

2.  The applicant states her apathetic attitude and bad behavior were due to a post-traumatic stress disorder (PTSD) condition that resulted from an incident of rape that she endured during her military service.

3.  The applicant provides:

* passport, marriage certificate, divorce decree, second marriage certificate
* previous Army Board for Correction of Military Records (ABCMR) Record of Proceedings
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* two letters from the U.S. Army Criminal Investigation Command (USACIDC) [also referred to simply as CID]
* Department of Veterans Affairs (VA) rating decisions
* several character reference letters (some were previously submitted)
* various medical documents related to PTSD, sleep, and migraines
* several counseling statements and certificates of appreciation (previously submitted)
* letter of reprimand, bar to reenlistment, sworn statements, Article 15, and extracts from her separation packet (previously submitted)

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090005782 on 23 February 2010.

2.  The applicant submitted two letters from CID; VA rating decisions; several character reference letters; and various medical documents related to PTSD, sleep, and migraines, which were not previously considered by the ABCMR.  Therefore, they are considered new evidence and, as such, warrant consideration by the Board.

3.  The applicant's records show she enlisted in the Regular Army on 8 November 1989 and held military occupational specialty 95B (Military Police).  She served in Germany from April 1990 to May 1992 and attained the rank/grade of private first class/E-3.  She was assigned to 127th Military Police Company.

4.  Her records show she was awarded the Army Commendation Medal, National Defense Service Medal, Army Service Ribbon, Overseas Service Ribbon, Expert Marksmanship Qualification Badge with Grenade Bar, Expert Marksmanship Qualification Badge with Pistol Bar (9mm), Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16), and Marksman Marksmanship Qualification Badge with Pistol Bar (.38 caliber).

5.  Her records show she accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for dereliction of duty and two instances of insubordination.

6.  On 6 November 1991, she was reprimanded by her immediate commander for violating company policy by having a bottle of vodka in her personal drawer in the company barracks and refusing to relinquish the bottle.

7.  On 2 April 1992, she again accepted NJP under the provisions of Article 15 of the UCMJ for dereliction of duty in that she failed to perform patrol duties by parking her military vehicle and going to sleep.

8.  Her service record contains an extensive history of negative counseling by several members of her chain of command for various infractions including substandard performance of law enforcement duties, physical fitness test failure, misappropriation of government property, writing bad checks, negative attitude, unprofessionalism, unacceptable behavior, lack of self-control and/or self-discipline, slander and spreading rumors, failure to be prepared for an inspection, failure to repair, failure to maintain accountability of issued items, and apathetic attitude (failing to complete the run portion of a physical fitness test).

9.  On 7 April 1992, subsequent to counseling for the intent to initiate separation action against her, she underwent a separation medical examination.  The Standard Form 88 (Report of Medical Examination) shows she was found medically qualified for separation.  Additionally, on 14 April 1992 she also underwent a mental status evaluation wherein she was found to have normal behavior and she was fully-oriented and alert with a clear thinking process and normal thought content.

10.  Subsequent to her mental status evaluation, her immediate commander notified her of his intent to initiate separation action against her in accordance with paragraph 14-12b of Army Regulation 635-200 (Personnel Separations) for misconduct – a pattern of misconduct.  Specifically, the immediate commander cited the applicant's failure to maintain her military appearance, various instances of disrespect, a letter of reprimand, one instance of a dishonored check, and the NJP for dereliction of duty.  He recommended a general discharge under honorable conditions.

11.  On 29 April 1992, she acknowledged receipt of the commander's intent to separate her.  She subsequently consulted with legal counsel and was advised of the basis for the contemplated separation action for misconduct, 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 understood she was not entitled to an administrative separation board or a personal appearance before such board.  She submitted a statement on her own behalf wherein she rebutted each of the specific reasons mentioned in her notification memorandum.  She added that she may not have been a great Soldier all the time, but she was not the person the separation packet made her out to be and, like other Soldiers, she had some problems.  She further appealed to the separation authority to terminate the action to discharge her.

12.  She further acknowledged she understood that she could expect to encounter substantial prejudice in civilian life if a general discharge were issued to her.  She also acknowledged she understood that as a result of the issuance of a discharge under other than honorable conditions, she could be ineligible for many or all benefits as a veteran under both Federal and State laws.

13.  On 29 April 1992, her immediate commander initiated separation action against her in accordance with paragraph 14-12b of Army Regulation 635-200 for misconduct – a pattern of misconduct.  He indicated she had no rehabilitative potential and recommended a general under honorable conditions discharge.

14.  In April or May 1992, the applicant's intermediate commander recommended approval of her discharge with the issuance of an under honorable conditions (general) character of service.

15.  On 11 May 1992, subsequent to a legal review for sufficiency, the separation authority approved the applicant's discharge under the provisions of paragraph 14-12b of Army Regulation 635-200 by reason of misconduct – a pattern of misconduct – and directed her service be characterized as under honorable conditions.  The applicant was discharged accordingly on 19 May 1992.

16.  The DD Form 214 she was issued confirms she was discharged under the provisions of paragraph 14-12b of Army Regulation 635-200.  She completed a total of 2 years, 6 months, and 12 days of creditable military service.  This form also shows in:

* Item 24 (Character of Service),"UNDER HONORABLE CONDITIONS (GENERAL)"
* Item 25 (Separation Authority), "ARMY REGULATION 635-200, 
PARAGRAPH 14-12C"
* Item 26 (Separation Code), "JKQ"
* Item 27 (RE Code), "3"
* Item 28 (Narrative Reason for Separation), "MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE"

17.  On 24 February 2010, the Board granted her relief by correcting the separation authority, separation code, and narrative reason for separation.  Accordingly, her DD Form 214 was voided and she was reissued a DD Form 214 that shows in:

* Item 24, "UNDER HONORABLE CONDITIONS (GENERAL)"
* Item 25, "ARMY REGULATION 635-200, PARAGRAPH 14-12B"
* Item 26, "JKM"
* Item 27, "3"
* Item 28, "MISCONDUCT – PATTERN OF MISCONDUCT"

18.  There is no indication she applied to the Army Discharge Review Board for an upgrade of her discharge within that board's 15-year statute of limitations.

19.  She submitted the following documents:

	a.  her passport, marriage certificate, divorce decree, and second marriage certificate to confirm her identity;

	b.  a letter from CID, Fort Belvoir, VA, dated 14 May 2009, wherein an official certified that the applicant reported to Army CID in late 1991/early 1992 that she was raped while on active duty with the Army in Germany.  However, the CID official stated that his office was unable to provide further documentation pertaining to this matter due to record migration several years ago;

	c.  a letter from a CID deputy staff judge advocate to the applicant's Member of Congress, dated 4 June 2009, restating the same contents as the previous letter;

	d.  A VA rating decision, dated 10 March 2010, that shows she was awarded service-connected disability compensation for PTSD effective 24 March 2009 and for migraine headaches effective 4 March 2009;

	e.  various older (1990's) character reference letters, letters of support, or statements on behalf of the applicant wherein some of the authors speak of her professional character while others recall events that occurred at the time.  Overall, the authors agreed that her performance was commensurate with that expected of Soldiers in her grade.  One author stated he was her squad leader at the time and opined that she was one of the most professional military police members he had worked with.  Another author stated the applicant confided in him about her rape and opined that her low self-esteem and alcohol dependency contributed directly to her being raped;

	f.  various newer (2009) character reference letters or statements wherein the authors opine about her depression, migraines, and low self-esteem.  In one statement, her mother opines that the Army did nothing with respect to the applicant's rape and she should get some kind of redress for all the suffering she endured.  In another statement, a medical doctor describes the applicant's chronic daily headaches and migraines; and

	g.  various medical documents that show she was diagnosed with PTSD and migraine headaches in 1997 and underwent treatment at various clinics.

20.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct - commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority could direct a general discharge if such was merited by the Soldier's overall record.  Only a general court-martial convening authority could approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of the regulation.

21.  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.

22.  Army Regulation 635-5-1 (Separation Program Designator Codes) states that the separation program designator (SPD) codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The "JKM" SPD code is the correct code for Soldiers separating under the provisions of paragraph 14-12(b) of Army Regulation 635-200 by reason of misconduct.

23.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  This cross reference table shows the SPD code and a corresponding RE code.  The SPD code of "JKM" has a corresponding RE code of "3."

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows she displayed a pattern of misconduct throughout her assignment in Germany.  Her record of service reflects a letter of reprimand, two instances of NJP, and an extensive history of counseling by her leaders for various other infractions.  Accordingly, her chain of command initiated separation action against her.  All requirements of law and regulation were met and her rights were fully protected throughout the separation process.

2.  Her discharge was appropriate because the quality of her service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.  Her repeated misconduct and failure to respond to counseling by members of her chain of command diminished the quality of her service.  Based on her record of indiscipline, her service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered her service unsatisfactory.  Therefore, she is not entitled to an honorable discharge.

3.  With respect to the narrative reason for separation, authority, and associated codes, her service records show she was discharged under the provisions of paragraph 14-12b of Army Regulation 635-200 due to her pattern of misconduct.

	a.  Prior to her discharge she underwent a mental status evaluation wherein it was determined that she was normal, fully oriented and alert with a clear thinking process and normal thought content.  There was no indication of a mental disorder, PTSD, or anxiety.

	b.  The ABCMR corrected her narrative reason for separation from "commission of a serious offense" to "a pattern of misconduct" and the authority for separation from paragraph 14-12c to paragraph 14-12b of Army Regulation 635-200.  The ABCMR also determined that her discharge was both proper and equitable.

	c.  Therefore, the underlying reason for her discharge was her pattern of misconduct.  Absent the misconduct, there was no fundamental reason to process her for discharge.  The only valid narrative reason for separation permitted under this paragraph is "misconduct – pattern of misconduct" which is correctly shown on her DD Form 214.  The appropriate SPD code associated with this discharge is "JKM" and the corresponding RE code is "3," both of which are properly shown on her DD Form 214.

4.  Her medical records show she underwent a medical examination prior to her discharge in 1992.  However, nothing in her medical records indicates she was diagnosed with PTSD, anxiety, or any injury or disease at the time of her discharge that would have warranted her entry into the Physical Disability Evaluation System.  Because all the evidence of record shows she was fully capable of performing her duties up until her discharge, there was no reason to consider her for entry into the Physical Disability Evaluation System.

5.  Further, there is no evidence in her records and she did not provide any evidence that shows her separation for misconduct was related to the alleged rape or any medical conditions (migraines, PTSD) she had been recently diagnosed with.  The nature of her misconduct (failure to maintain her military appearance, various instances of disrespect, a letter of reprimand, one instance of a dishonored check, and the NJP for dereliction of duty) had no conclusive relation to a medical condition diagnosed in 2009, some 17 years after she was discharged.  She has presented no compelling evidence that shows other circumstances warranted her disability processing over her administrative separation.

6.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  She did not provide any substantiating evidence to show her separation reason, authority, or related codes were in error.  Therefore, she is not entitled to the 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 to amend the decision of the ABCMR set forth in Docket Number AR20090005782, dated 23 February 2010.



      _______ _   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)                                         AR20100014505



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ABCMR Record of Proceedings (cont)                                         AR20100014505



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