IN THE CASE OF:	  

		BOARD DATE:	  8 December 2011

		DOCKET NUMBER:  AR20110010659 


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.  She states that during her first term of service in the active Army she was going through a very difficult time.  She explains that she was involved in a custody battle with her ex-husband.  She was stationed in Korea and her ex-husband had custody of their eldest daughter.  She maintains that he was not fulfilling his responsibilities to their child.  She adds that she was unable to focus on her job and her commitment to her unit was seriously affected.  She states that she was granted a 10-day emergency leave to resolve the situation; but it was not enough time to obtain custody of their child.  She offers that her concern about the welfare of her daughter and the stress of the situation led to her receiving a discharge for misconduct.  She contends that her subsequent service in the Army National Guard (ARNG) shows she is capable of being a good Soldier.

3.  She provides her DD Form 214 (Certificate of Release or Discharge from Active Duty) and a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service).

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 in the Regular Army on 
25 October 2002.  

3.  On 21 October 2003, nonjudicial punishment was imposed against her under the provisions of Article 15, Uniform Code of Military Justice for the being disrespectful in language towards a noncommissioned officer.  Her punishment was suspended and vacated on 9 December 2003 for failing to go at the time prescribed to her appointed place of duty.  

4.  On 15 January 2004, the unit commander notified the applicant of his intent to recommend her for separation under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations) chapter 14-12b, pattern of misconduct.  He cited the applicant's Article 15 on 
21 October 2003, her vacation of suspension on 9 December 2003, and numerous counseling statements as justification for his recommendation.  

5.  On 20 January 2004, the applicant consulted with military counsel.  After being advised of the basis for the contemplated separation action and its effects and the rights available to her, she elected to submit a statement in her behalf.  She acknowledged that she understood that she could encounter substantial prejudice in civilian life if a general discharge was issued to her.  She further acknowledged that she understood if she received a character of service which was less than honorable she could make an application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade of her discharge.  However, she understood that an act of consideration by either board did not imply that her discharge would be upgraded.

6.  In the applicant's statement, she requested that her service be characterized as honorable.  She provided a synopsis of her accomplishments during her period of military service.  She explained that her daughter was currently residing with the daughter's alcoholic father and she feared for the daughter's safety.  She 

offered that upon returning home she would get custody of her daughter.  She stated that she regretted that she could not adapt to a Soldier's lifestyle, but did not believe her daughter should have to pay for her mistakes.  She concluded that she just wanted to go home and take care of her daughter.

7.  On 4 February 2004, the separation authority approved the recommendation for discharge under the provisions of chapter 14, Army Regulation 635-200, and directed the issuance of a General Discharge Certificate.

8.  Her DD Form 214 shows she was discharged on 25 February 2004 under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct, with a characterization of service of general under honorable conditions.  She was credited with completing 1 year, 4 months, and 1 day of active service.

9.  On 14 May 2005, the applicant enlisted in the ARNG.  She was honorably transferred to the U.S. Army Reserve Control Group (Reinforcement) on 13 May 2007.

10.  The applicant appealed to ADRB for an upgrade of her discharge.  On 
14 November 2005, the ADRB denied her request for a discharge upgrade.  The ADRB determined that her discharge was both proper and equitable.

11.  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, commission of a serious offense, and abuse of illegal drugs.  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.

12.  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 argument that her custody battle over her daughter led to her indiscipline and subsequently to her discharge for misconduct was considered.  However, there is no evidence in the available records to show she applied for and was denied a compassionate reassignment.  Likewise, there is also no evidence to show she sought counseling for her problems.

2.  The available evidence confirms that all requirements of law and regulation were met and her rights were fully protected throughout the separation process.  The record further shows her discharge accurately reflects her overall record of service.  

3.  Her record of indiscipline does 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)                                         AR20110010659



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ABCMR Record of Proceedings (cont)                                         AR20110010659



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