BOARD DATE:	  17 May 2011

		DOCKET NUMBER:  AR20100027182 


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 her company commander recommend she receive an honorable discharge; however, the battalion commander recommended she receive a general discharge.  She states her unit had three alerts in the week she moved off post.  She did not have a phone yet and her point of contact did not wake her up for the alerts.  As a result she was given an Article 15.  She states she was a model Soldier and is disappointed that the relatively insignificant mistakes she made in one month had such a negative consequence.  She states she should not be penalized for the rest of her life because of these mistakes. 

3.  The applicant did not provide documents to support her application. 

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 27 June 1995.  She completed her initial entry training and she was awarded military occupational specialty (MOS) 52C (Utility Equipment Repairer).

3.  On 23 August 1999, she accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for assaulting a civilian in government quarters, missing a unit movement, failing to go to her appointed place of duty, and being absent without authority (AWOL) on 11 August 1999.  She accepted a second NJP on 29 September 1999 for disrespecting a superior noncommissioned officer (NCO) and two specifications of failing to report for accountability formations. 

4.  On 26 October 1999, the applicant’s commander notified her that action was being initiated to separate her from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph
14-12 for patterns of misconduct.  The justification for her separation action was her pattern of minor military disciplinary infractions punishable under the provisions of the UCMJ.  The applicant acknowledged receipt of this separation notification.

5.  The commander advised her of her right to be represented by counsel, to submit written statements in her own behalf, to obtain copies of supporting documents, to waive any of these rights, or to withdraw any waiver of rights at any time prior to the date the discharge authority directed or approved her discharge.  

6.  On 26 October 1999, she consulted with counsel.  She indicated she understood that she could expect to encounter prejudice in civilian life with a general discharge under honorable conditions or an under other than honorable conditions discharge.  She further acknowledged she could apply to the Army Discharge Review Board (ADRB) or this Board for an upgrade of her discharge and that she would be ineligible to enlist in the U.S. Army for a 2-year period after her separation.  She elected to submit a statement in her own behalf.

7.  Within her personal statement, she stated she had served 4 years of honorable service, often exceeding established standards in the Army Physical 


Fitness Test, automatic rifle qualification, and performing duties not within the requirements of her MOS.  She stated she served in Germany and deployed forward in support of operations in Bosnia.  She experienced financial difficulties after she had moved off post and she did not have a telephone.  Unit personnel did not notify her when her unit initiated an alert requiring her to report for duty; therefore, she did not intentionally fail to report for an alert.  As for the charge of being AWOL, she states she was on quarters after seeking medical assistance in the emergency room and she had called the orderly room to report the change of her duty status.

8.  She continued by stating the assault charges filed against her were never fully investigated.  She states, "I really did not assault that lady."  As for the minor offense of disrespecting an NCO, she thought he was joking with her because she could not tell the difference between his joking attitude and professional counseling.  She states she had been punished enough with the imposition of two NJPs and she asked her commander to grant her an honorable discharge.

9.  On 26 October 1999, the applicant's commander recommended her for discharge under the provisions of Army Regulation 635-200, paragraph 14-12b, for a pattern of misconduct.  

10.  On 24 November 1999, a Staff Judge Advocate Administrative Law Attorney reviewed the applicant's separation packet and found it legally sufficient, with one exception.  The attorney stated that even though the applicant's company commander recommended separation with an honorable discharge, only a general court-martial convening authority (GCMCA) is authorized to separate a Soldier with an honorable discharge.  The commander, 49th Quartermaster Group [applicant's higher headquarters] was authorized to order a general discharge.

11.  On 9 December 1999, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 14-12b for a pattern of misconduct.  He directed the issuance of a general discharge.

12.  On 23 December 1999, the applicant was discharged accordingly.  She was issued a DD Form 214 confirming she was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of a misconduct, with a general discharge.

13.  The applicant applied to the ADRB on 29 June 2007.  By unanimous decision, the ADRB denied the applicant's request to upgrade her discharge.  


14.  References:

	a.  Army Regulation 635-200 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 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, 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 GCMCA may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

	b.  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.

	c.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ.  The maximum punishment for missing movement through neglect and disrespecting a superior NCO is a bad conduct discharge, reduction to the lowest enlisted grade, total forfeiture of all pay and allowances and a 2-year confinement.  The maximum punishments for the additional offenses under the UCMJ are as follows:
   
* for simple assault, 3 months confinement and forfeiture of two thirds pay for 3 months
* for failing to go or report, 1 month confinement and forfeiture of two thirds pay for 1 month 
* for AWOL that is less than 3 days, 1 month confinement and forfeiture of two thirds pay for 1 month


DISCUSSION AND CONCLUSIONS:

1.  Based on the evidence of record, the applicant's company commander initiated separation action against her for a pattern of minor disciplinary infractions.  In his recommendation, he indicated she should be given an honorable discharge. 

2.  While the applicant stated her company commander recommended an honorable discharge, the approval authority is not bound by the company commander's recommendation.  Only a GCMCA has the authority to direct an honorable discharge under the provisions of Army Regulation 635-200, paragraph 14-12b.

3.  All of her minor disciplinary offenses are violations of the UCMJ with the maximum punishment of a punitive discharge, confinement for 2 years, reduction to the lowest enlisted grade, and total forfeiture of all pay and allowances.

4.  The applicant's chain of command showed her leniency by administratively discharging her under the provisions of Army Regulation 635-200.

5.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

6.  In view of the foregoing, there is insufficient evidence to warrant 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)                                         AR20100027182



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ABCMR Record of Proceedings (cont)                                         AR20100027182



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