IN THE CASE OF:	  

		BOARD DATE:	  4 August 2011

		DOCKET NUMBER:  AR20100029672 


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, under honorable conditions to an honorable discharge.

2.  She states her discharge was based on an isolated incident that occurred while she was very immature.  She attests that she has been out of the military for 24 years in good standing.

3.  She provides no additional 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 record shows she was born on 1 May 1963 and she enlisted in the Regular Army on 16 April 1985 at the age of 21 years, 11 months, and 6 days.  She completed basic combat training and advanced individual training (AIT).  Upon completion of AIT, she was awarded military occupational specialty 52D (Power Generation Equipment Repairer).  The highest rank/grade she attained while serving on active duty was private first class (PFC)/E-3.  However, at the time of separation she held the rank/grade of private (PV2)/E-2.

3.  The applicant's record contains a DA Form 3975 (Military Police Report), dated 10 March 1986, which shows she attempted to commit suicide by taking 20-25 Motrin (aspirin) pills on 11 March 1986.  Her company commander indicated she had attempted suicide in December of 1985 and she had been referred to mental health for an evaluation and counseled by the chain of command and the chaplain.  In spite of these efforts, no one was able to determine what her problem was.  Mental health personnel recommended that she be dealt with administratively, not medically, and opined that she met the retention standards of Army Regulation 40-501 (Standards of Medical Fitness).

4.  The applicant's record contains a DA Form 3975, dated 16 August 1986, which shows she was apprehended by military police on 16 August 1986 after failing a field sobriety test and an intoxilyzer test.  Her chain of command was notified and she was cited and released to their control.  

5.  On 26 August 1986, the applicant appeared in the U.S. Magistrate Court, Fort Ord, CA, after being charged with driving under the influence (DUI).  She pled guilty to a lesser charge of reckless driving.  As a result, she was sentenced to:

* 5 days in jail, suspended for 3 years
* unsupervised probation
* a $145.00 fine

6.  On 26 September 1986, she departed her unit in an absent without leave (AWOL) status and remained absent until she surrendered on 10 October 1986.  

7.  The applicant's record contains a DA Form 3975, dated 13 October 1986, which shows she attempted to commit suicide (for the third time) by cutting her wrist.  She had five stitches put in her left wrist and was admitted to the psychiatric ward of the hospital.

8.  On 21 October 1986, as a result of her guilty plea to reckless driving, a lesser charge of DUI, her privilege to operate a privately owned motor vehicle on the Fort Ord Base Complex was revoked for a mandatory period of 12 months.

9.  On 28 October 1986, as a result of her aforementioned period of AWOL from 26 September to 10 October 1986, she accepted nonjudicial punishment (NJP) under the provisions of Article 15 for violating Article 86 of the Uniform Code of Military Justice (UCMJ) and she was reduced from the rank/pay grade of PFC/
E-3 to PV2/E-2.

10.  On 4 November 1986, the applicant was barred from reenlistment.

11.  On 17 November 1986, the applicant underwent another mental evaluation and the examining psychiatrist provided the following remarks:

	a.  "There is no evidence of psychiatric disease, defect or disability that would warrant disposition through military Medical channels."

	b.  "This individual suffers from a disorder of personality characterized by unpredictable and impulsive acting out behaviors and chronic severe alcohol abuse."

	c.  "It is strongly recommended that expeditious separation from the U.S. Army would be in the best interest of the Soldier and the U.S. Army as further behavioral difficulties with this Soldier can be anticipated."

12.  On 8 December 1986, the applicant’s unit commander notified her he was initiating action which could result in her separation from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for commission of a serious offense consisting of being AWOL, reckless driving, and attempting suicide.

13.  The unit commander stated he would recommend that the applicant be issued a general discharge under honorable conditions.  The unit commander also informed the applicant that the least favorable characterization of service that she could receive was a general discharge.  The unit commander continued by advising the applicant of her rights to consult with legal counsel, to submit written statements in her own behalf, to obtain copies of the documents that would be sent to the separation authority supporting the proposed separation action, to a hearing before an administrative board if she had six or more years of active and Reserve military service at the time of separation, to waive these rights in writing, and to withdraw her waiver of any of these rights at any time prior to the date the discharge authority directed or approved her separation.  The applicant acknowledged receipt of this notification on 8 December 1986.


14.  On 8 December 1986, the applicant consulted with legal counsel and after being advised of the basis for the contemplated separation action, its effects and the rights available to her, she acknowledged she understood that if she was issued a general discharge, she could expect to encounter substantial prejudice in civilian life.  She elected not to submit statements in her own behalf, but requested to consult counsel.

15.  On 8 December 1986, the applicant’s unit commander recommended that she be separated from the Army under the provisions of Army Regulation
635-200, chapter 14, paragraph 14-12c, for commission of a serious offense.

16.  On 12 December 1986, the separation authority approved the unit commander's request, and directed that the applicant be separated under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, and that she be issued a General Discharge Certificate.

17.  On 23 December 1986, the applicant was discharged accordingly.  Block 24 (Character of Service) of the DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she was issued a general discharge.  Block 25 (Separation Authority) shows she was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c.  Block 26 of this form shows she was assigned a Separation Program Designator code of "JKQ."  Block 28 (Narrative Reason for Separation) shows "Misconduct--Commission of a serious offense."  Block 29 (Dates of Time Lost During This Period) shows the applicant had lost time during the period 26 September to 9 October 1986.

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.  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.

20.  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's contention that her record should be corrected by upgrading her general discharge under honorable conditions to an honorable discharge was carefully considered and determined to be without merit.

2.  Her record shows she was nearly 22 years of age at the time of enlistment and 22 years of age at the time of her offenses.  However, there is no evidence indicating she was any less mature than other Soldiers of the same age who successfully completed their military service obligation.

3.  She contends her discharge was based on an isolated incident.  However, the record shows the applicant had multiple disciplinary infractions.  In spite of her indiscipline, her chain of command was willing to allow her to remain on active duty and continue to serve.  The available evidence shows she was not responsive to the rehabilitative efforts of her command.

4.  The available evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized her rights.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects her overall record of service.

5.  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.  Therefore, she is not entitled to an upgrade of her general discharge 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)                                         AR20100029672



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ABCMR Record of Proceedings (cont)                                         AR20100029672



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