IN THE CASE OF:	  

		BOARD DATE:	  15 November 2011

		DOCKET NUMBER:  AR20110010316 


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 under honorable conditions (general) discharge.

2.  The applicant states she was coerced into a reduction in rank because of sexual harassment she was under at the time.  She was not protected by her supervisor. 

3.  The applicant provides a statement of support and a statement in support of a Department of Veterans Affairs claim.

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 enlisted on 15 January 1985 and she held military occupational specialty 72E (Tactical Telecommunications Center Operator).  She was assigned to Fort Lewis, WA, and she attained the rank/grade of specialist/E-4.

3.  Her records show she accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on/for:

* 14 November 1985, failing to be at the time prescribed at her appointed place of duty
* 18 December 1985, failing to obey a lawful order
* 13 may 1987, failing to obey a lawful order

4.  Her records contain an extensive history of negative counseling for various infractions or incidents including failure to obey a police officer, refusal to give information to a police officer, failure to display vehicle registration, failing to have her license in her possession, leaving her appointed place of duty, failing to have her military identification card during an inspection, failing to show up for formation, being absent from work area, multiple instances of failure to report, being late for work, and disrespect.

5.  On 11 May 1987, her immediate commander initiated a Bar to Reenlistment Certificate against her citing her NJP.  He stated that she had been a continuous problem since arrival in the unit.  Her personal problems had inhibited her ability to be a productive Soldier and she could not mentally take the pressure of Army life.  She was provided with a copy of this bar but she elected not to submit a statement in her own behalf.  The bar was ultimately approved by the appropriate authority.

6.  On 26 May 1987, the applicant's immediate commander notified her of his intent to initiate separation action against her in accordance with chapter 14-12b of Army Regulation 635-200 (Personnel Separations) for misconduct - a pattern of misconduct.  He recommended a general discharge.

7.  On 27 May 1987, she acknowledged receipt of the commander's intent to separate her.  She 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 elected consideration of her case by a separation board and a personal appearance before a separation board; however, she was ineligible for such a   board because she did not have 6 or more years of service.  She also elected not to submit a statement on her own behalf.  
8.  The applicant further indicated she understood she could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  She further 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 Federal and State laws and that she could expect to encounter substantial prejudice in civilian life.

9.  The applicant's immediate commander initiated separation action against her in accordance with chapter 14-12b of Army Regulation 635-200 due to misconduct - pattern of misconduct.

10.  On 28 May 1987, her intermediate commander recommended approval of the discharge 

11.  Consistent with the chain of command's recommendations, the separation authority approved her administrative discharge and ordered her discharged under the provisions of chapter 14-12b of Army Regulation 635-200 by reason of misconduct and directed she be furnished a General Discharge Certificate.  

12.  She was discharged on 4 June 1987.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) she was issued confirms she was discharged under the provisions of chapter 14-12b of Army Regulation 635-200 by reason of misconduct - pattern of misconduct, with service characterized as under honorable conditions.  This form further confirms she completed a total of 2 years, 4 months, and 20 days of creditable active military service.

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

14.  She submitted:

	a.  A statement from an individual who states he witnessed numerous occasions where the applicant was subjected to demeaning and morally degrading verbal assault by her peers and leaders.  Even the battalion chaplain made fun of her name in one harassing incident.   He adds that he believes the harassment she endured ended her career.

	b.  A statement in support of her VA claim wherein she alleges multiple instances of sexual harassment and labels.  She describes several instances of crude behavior or foul language in the work place and that her chain of command did not do anything about the prevailing harassment at the time. 


15.  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 frequent incidents of a discreditable nature with civil or military authorities, an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts, and an established pattern showing dishonorable failure to contribute adequate support to dependents.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged for acts or patterns of misconduct.  However, the discharge authority could direct an honorable or general discharge if such were merited by the Soldier's overall record.

16.  Army Regulation 635-200, paragraph 3-7a, states 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 record of service reveals a history of misconduct that included multiple instances of NJP, a bar to reenlistment, and an extensive history of negative counseling.  She demonstrated little desire to serve honorably and despite receiving considerable counseling, she did not respond favorably.  Accordingly, her chain of command initiated separation action against her.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

2.  The applicant's 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.  

3.  There is no evidence in her records and she did not provide any evidence to support her contention that she was sexually harassed.  There are no police reports, complaints to the Inspector General, Equal Opportunity complaints, or any other evidence to support her contention.  

4.  Her record of service was insufficiently meritorious to warrant an honorable discharge.  Therefore, she is not entitled to an upgrade of her 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)                                         AR20110010316



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ABCMR Record of Proceedings (cont)                                         AR20110010316



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