IN THE CASE OF:	  

		BOARD DATE:	 1 May 2012 

		DOCKET NUMBER:  AR20110020144 


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 reconsideration of an earlier request to change her separation code.  She also requests her rank be restored to specialist E-4, which is a new issue. 

2.  The applicant states:

* Her discharge [separation] code should be changed to involuntary family responsibilities or lack of family care plan
* Originally she was not to be deployed and instead she was discharged from the military in January 2003 because she did not have a family care plan in place
* A charge of disrespect and threatening an officer with harm (by doing voodoo) was used to force her out of the military
* The case was handled at the company level and she was stripped of all rank, all pay, and given 25 days in jail for threatening an officer
* She is applying to law school and her DD Form 214 (Certificate of Release or Discharge from Active Duty) as well as her military records show she left the military as an E-1 after 6 years and 9 months which does not look good and can keep her from passing a background check
* She should have been discharged in February 2003 and not deployed to Kuwait because she had a Red Cross message indicating her children had been taken to social services
* She was not redeployed, instead she was kept in Kuwait and Iraq 
6 months and finally redeployed after she received a second Red Cross message 
3.  The applicant provides:

* Service personnel records
* Congressional correspondence
* Report of Mental Status Evaluation
* Department of Veterans Affairs letter, dated 29 May 2007
* DD Form 214

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 requested her separation code be changed.  This issue was previously considered by the ABCMR on 16 May 2006 per Docket Number AR20050006512 and denied.  Army Regulation 15-185 sets forth procedures for processing requests for correction of military records.  Paragraph 2-15b governs requests for reconsideration.  This provision of the regulation allows an applicant to request reconsideration of an earlier ABCMR decision if the request is received within one year of the ABCMR's original decision and it has not previously been reconsidered.  The staff of the ABCMR reviewed the applicants request pertaining to her separation code and determined that it was not received within one year of the ABCMR's original decision.  Additionally, she did not provide any new evidence that would warrant reconsideration of her request.  As a result, her request pertaining to this issue does not meet the criteria for reconsideration.  Therefore, this portion of the applicant's request will not be discussed further in these Proceedings.

3.  She enlisted in the Regular Army on 14 February 1997 for a period of 5 years.  She completed her training and was awarded military occupational specialty (MOS) 93C (Air Traffic Control Operator) and later MOS 71L (Administrative Specialist).  She attained the rank of specialist on 1 April 1999.  On 9 October 2002, she was honorably discharged for immediate reenlistment.  She reenlisted on 10 October 2002 for a period of 3 years.
4.  On 19 February 2003, she was deployed to Southwest Asia in support of Operation Enduring/Iraqi Freedom and remained there until 2 August 2003, when she was redeployed back to Fort Stewart.

5.  On 26 September 2003, her commander notified her that he was initiating action to separate her from the service under the provisions of Army Regulation 635-200, chapter 14, due to misconduct.  He cited as the basis for his recommendation that the applicant:

* had made disrespectful remarks towards a commissioned officer and noncommissioned officer
* had missed movement
* had disobeyed a direct order to submit a viable family care plan
* was neglectful in the care of her children  

6.  On 8 October 2003, the applicant was convicted by a summary court-martial of one specification of behaving disrespectfully towards a commissioned officer, one specification of behaving disrespectfully towards a noncommissioned officer and two specifications of communicating a threat.  She was sentenced to a reduction to the pay grade of E-1, a forfeiture of pay (suspended), and confinement for 30 days.  The applicant appealed her punishment and her appeal was denied on 14 October 2003.

7.  On 14 October 2003, the separation authority approved the recommendation for discharge and directed that she be furnished a General Discharge Certificate.

8.  On 14 November 2003, she was discharged under honorable conditions under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct.  She had served 6 years, 9 months, and 1 day of total active service.

9.  On 17 December 2004, the Army Discharge Review Board upgraded her discharge to honorable under Secretarial Authority.  She was issued a new 
DD Form 214 and Honorable Discharge Certificate.  Her separation code was changed to coincide with the new authority for separation, Army Regulation 
635-200, paragraph 5-3, Secretarial Authority.

10.  Item 4a (Grade, Rate or Rank) of her DD Form 214 shows the entry "PV1."  Item 4b (Pay Grade) shows the entry "E1."  Item 12h (Effective Date of Pay Grade) shows the entry "2003 10 08" (8 October 2003).  

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests her rank be restored to E-4.
2.  Her military records show she was reduced from E-4 to E-1 on 8 October 2003 by sentence by summary court-martial.  She provides insufficient evidence to show that was an improper punishment for the offenses charged.  Her final reduction is properly reflected in items 4a, 4b, and 12h of her DD Form 214.  Therefore, there is insufficient evidence on which to grant the 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)                                         AR20110020144



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ABCMR Record of Proceedings (cont)                                         AR20110020144



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