BOARD DATE:	  15 March 2011

		DOCKET NUMBER:  AR20100021793 


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 general discharge to an honorable discharge.

2.  The applicant states she enlisted in the U.S. Army with the intent of honorably serving her country.  During her military service she encountered inconsistent leadership that resulted in her being issued a general discharge.  She also states:

   a.  she has completed her Master of Arts Degree in Education and she desires to offer her leadership to children.

   b.  she is a volunteer at her church with the children's ministry and she is an active member in a community conscious organization.

3.  The applicant provides a copy of her résumé and Master of Arts Degree.

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 7 August 1992 for a period of   4 years.  Upon completion of training she was awarded military occupational specialty 92A (Automated Logistical Specialist).

3.  The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), as follows:

   a.  on 12 October 1993, for failing to obey a lawful order from a noncommissioned officer not to urinate in the mobilfex tents.  Her punishment consisted of 14 days of extra duty.

   b.  on 4 February 1994, for failing to go at the time prescribed to her appointed place of duty (i.e., physical training formation on 5, 11, and 24 January 1994).  Her punishment consisted of reduction to private/E-2 (suspended to be automatically remitted if not vacated before 6 June 1994), 14 days of extra duty, and 14 days of restriction.

4.  On 10 February 1994, the applicant's commander recommended the applicant be barred from reenlistment based on substandard performance:  

   a.  On 24 February 1994, the applicant acknowledged she had been counseled and advised of the basis for the action.  She elected not to submit a statement in her own behalf.

   b.  On 27 February 1994, the bar to reenlistment was approved.  The applicant declined to appeal the bar to reenlistment.

5.  On 9 May 1994, the applicant received NJP under Article 15, UCMJ, for being absent from her unit from 0615 hours on 18 April to 1530 hours on 19 April 1994.  Her punishment consisted of reduction to private (E-2), 14 days of extra duty, and 14 days of restriction.

6.  On 13 June 1994, the applicant's commander notified the applicant that he was initiating action to discharge her under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14 (Misconduct), paragraph 14-12b, based on an established pattern of misconduct.  The reasons for his proposed action were that the applicant had received NJP on three separate occasions and she had been counseled numerous times for various offenses.  The applicant was advised of her rights and of the separation procedures involved.

7.  On 15 June 1994, the applicant acknowledged she had been advised by consulting counsel of the basis for the contemplated separation action and its effects, the rights available to her, and the effect of a waiver of her rights:

   a.  She was advised she may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to her.

   b.  The applicant acknowledged she understood that if she received a discharge certificate/character of service which was less than honorable she could make application to the Army Discharge Review Board (ADRB) or this Board for an upgrade of her discharge; however, an act of consideration by either board did not imply that her discharge would be upgraded.
   
   c.  The applicant elected not to submit statements in her own behalf. 

   d.  Both the applicant and her counsel placed their signature on the document.

8.  The company commander recommended approval of the applicant's separation action with a general discharge.

9.  On 20 June 1994, the separation authority approved the separation action and directed that the applicant be discharged from the U.S. Army under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12b, based on a pattern of misconduct and that she be issued a General Discharge Certificate.

10.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she was discharged on 28 June 1994 under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct with service characterized as under honorable conditions (general).  She had completed 
1 year, 10 months, and 21 days of net active service.

11.  A review of the applicant's military personnel records failed to reveal any evidence that the applicant applied to the Army Discharge Review Board for correction of her discharge within its 15-year statute of limitations.




12.  In support of her request, the applicant provides the following documents:

   a.  A résumé that summarizes her professional experience in customer service, sales, and management with the Alzheimer's Association, Washington Mutual Bank, and Blue Cross Blue Shield, along with her academic and technical training.

   b.  University of Phoenix, Master of Arts Degree in Education (Elementary Teacher Education) conferred upon the applicant on 31 May 2010.

13.  Army Regulation 635-200, in effect at the time, set 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 consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense (one for which a punitive discharge is warranted and authorized), 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.
   
14.  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 that her general discharge under honorable conditions should be upgraded to fully honorable because she encountered inconsistent leadership during her military service that resulted in her discharge.  She adds that since her discharge she has obtained her master's degree and continues to contribute to her community.


2.  The applicant's administrative separation under the provisions of Army Regulation 635-200, paragraph 14-12b, for an established pattern of misconduct was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized her rights.  In addition, the type of discharge directed and the reasons therefore were appropriate and equitable.

3.  Records show the applicant received counseling on numerous occasions, NJP on three occasions, and a bar to reenlistment.  These measures taken by her military supervisors and chain of command were in an effort to encourage the applicant to change her behavior to comply with Army standards of conduct and to improve her duty performance in order for her to continue to serve honorably in the U.S. Army.  Despite the efforts by those in her chain of command, the applicant failed to respond to their efforts.  Thus, the evidence of record does not support the applicant's contention that inconsistent leadership led to her discharge.

4.  In addition to the foregoing, records show the applicant was reduced to E-2 and that she completed less than half of her 4-year active duty commitment.  Thus, the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, she is not entitled to an honorable discharge.

5.  The applicant's post-service educational achievements and contributions to her community were considered; however, they are not sufficiently mitigating to warrant relief.

6.  In view of all of the foregoing, there is no basis for granting 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 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)                                         AR20100021793



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ABCMR Record of Proceedings (cont)                                         AR20100021793



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