BOARD DATE:	 5 July 2011 

		DOCKET NUMBER:  AR20100029086 


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 was raped at the beginning of 2006, gave birth to her child, and tried to start over with her life.  Additionally, she states that:

   a.  during her time at Fort Campbell, KY, she was harassed and blamed for what had occurred.

   b.  she should have received a rehabilitative transfer to a new unit and been given the opportunity to show the new chain of command what kind of Soldier she was capable of being.  
   
   c.  she should not have been discharged for misconduct because all of her acts of misconduct occurred after she was raped and it was a result of sexual trauma.

3.  The applicant provides a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty) and Army Discharge Review Board (ADRB) letter, dated 12 June 2009.




CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted and entered active duty in the Regular Army for a period of 6 years on 10 February 2004.  She was awarded military occupational specialty 15F (Aircraft Electrician).  The highest rank she attained was specialist/ pay grade E-4.

2.  The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on two occasions for:

   a.  Being absent without leave (AWOL) from 22 to 29 January 2007 and for failing to go at the time prescribed to her appointed place of duty (i.e., at 0630 hours on 31 January and at 0630 hours on 1 February 2007).

   b.  Failing to go at the time prescribed to her appointed place of duty on three separate occasions (i.e., at 0630 hours and 1300 hours on 23 April 2007 and at 0900 hours on 8 May 2007).

3.  At a summary court-martial on 12 December 2007, the applicant pled guilty and was found guilty of the charge and specifications of being AWOL from 7 to 21 June 2007, and failing to report to her appointed place of duty on 9 July,
17 July, 19 September, and 4 October 2007.

   a.  On 12 December 2007, she was sentenced to be reduced to private first class (E-3), with reduction to private (E-2), suspended to be automatically remitted if not vacated before 26 February 2008.

   b.  On 19 December 2007, the convening authority approved the sentence and ordered it executed.

4.  On 21 December 2007, 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 14-12c, for commission of a serious offense.  The reasons for his proposed action were the applicant failed to report to her appointed place of duty on divers occasions, for being AWOL from 7 to 21 June 2007, and for both disrespecting and disobeying a noncommissioned officer.  The applicant was advised of her rights and of the separation procedures involved; however, she refused to acknowledge receipt of the notification action. 

5.  The immediate and intermediate commanders recommended approval of the applicant's separation action and recommended that she receive a general discharge.

6.  The applicant submitted a rebuttal to the administrative separation action.  She stated that she had been treated unfairly in the unit and subjected to a long pattern of harassment.  She also stated, "[m]y misconduct is typical Soldier misconduct that can easily be overcome with proper counseling and rehabilitative efforts."  Accordingly, she requested that the rehabilitative transfer requirement not be waived in her case.

7.  On 4 January 2008, 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, paragraph 14-12c, for commission of a serious offense with a General Discharge Certificate.  The approving authority waived the requirement for a rehabilitative transfer based on his judgment that further rehabilitation would not produce a quality Soldier.

8.  The applicant's DD Form 214 shows she was discharged on 15 January 2008 under the provisions of Army Regulation 635-200, paragraph 14-12c, based on misconduct (commission of a serious offense) with her service characterized as under honorable conditions.  She completed 3 years, 9 months, and 22 days of net active service.

9.  The applicant submitted a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) to the ADRB requesting an upgrade of her discharge.  On 10 June 2009, after consideration of the applicant's military records and all other available evidence, the ADRB determined the applicant's discharge was proper and equitable.  Accordingly, the applicant's request was denied and she was notified of the ADRB's decision.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel:

   a.  chapter 1 (General Provisions), paragraph 1-16 (Counseling and rehabilitative requirements), provides that Army leaders at all levels must be continually aware of their obligation to provide purpose, direction, and motivation to Soldiers.  It is essential that Soldiers who falter, but have the potential to serve honorably and well, be given every opportunity to succeed.  It also shows the rehabilitative transfer requirements in chapters 11, 13, and 14 may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality Soldier.  Such circumstances may include, in pertinent part, active resistance of rehabilitative efforts.

   b.  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 the regulation.

	c.  chapter 3 (Character of Service/Description of Separation), 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 an honorable discharge because she was harassed by members of her unit.  She should have received a rehabilitative transfer to a new unit; she should not have been discharged for misconduct.

2.  There is no evidence of record, and the applicant provides insufficient evidence, to show that her misconduct was the result of sexual trauma or that she was harassed by members of her unit.

3.  The evidence of record shows the applicant's administrative separation under the provisions of Army Regulation 635-200, paragraph 14-12c, for commission of a serious offense was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized her rights.  
The evidence of record also shows the separation authority considered the applicant's rebuttal, along with her potential for rehabilitation, and waived the requirement for a rehabilitative transfer based on his judgment that further rehabilitation would not produce a quality Soldier.  Thus, the type of discharge directed and the reasons were therefore appropriate and equitable.

4.  The applicant's military service records were thoroughly reviewed and carefully considered.  The evidence of record shows the applicant attained the rank of specialist four/E-4.  However, the evidence also shows she received NJP on two occasions for being AWOL and failing to go at the times prescribed to her appointed place of duty on five separate occasions.  It also shows she was subsequently convicted at a summary court-martial for being AWOL and failing to report to her appointed place of duty on four separate occasions.  Despite the applicant's rebuttal to the separation action regarding her misconduct, in fact, her pattern of misconduct was not and is not the typical conduct of other Soldiers.

5.  In view of the foregoing, it is concluded that 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.

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)                                         AR20100029086



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ABCMR Record of Proceedings (cont)                                         AR20100029086



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