IN THE CASE OF: 

		BOARD DATE: 2 October 2012

		DOCKET NUMBER:  AR20120004494 


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 that her general discharge be upgraded to honorable.

2.  The applicant states:

	a.   her discharge should be upgraded for equity due to multiple violations performed by her chain of command that conflict with standard Army policies and procedures to include Sexual Harassment/Assault Response and Prevention (SHARP) provisions.  

	b.  In October 2001, during a field training exercise, she was sexually harassed by Private 2 (PV2) Eric B____ and Sergeant (SGT) Bryan G____.  After she reported the incident, she was isolated by the chain of command, refused a rehabilitative transfer, singled out and forced to continue her service in a hostile command climate.

	c.  The chaplain and battalion commander were not aware of the sexual harassment incident and were only notified of negative incidents pertaining to her character from then on.  Her Professional Soldier Counseling Packet went missing at that time.  She was then counseled five times over two incidents.  Those counselings were then used for the Article 15 under the Uniform Code of Military Justice (UCMJ) and the chapter 14-12b proceedings.

	d.  During this period serious medical policy violations were not addressed which involved deployment to the Joint Readiness Training Center (JRTC).  She was pregnant and began to miscarry while deployed.	
	e.  On 21 May 2002, she presented her company commander with a memorandum for a "Request for Article 138, UCMJ" in order to locate her Professional Soldier Counseling Packet and service member information files.  These packets held plenty of evidence about the positive side of her character.  She received a letter from the company commander notifying her that the counseling packet was missing.  Without the missing counseling packet, which contained positive counseling, all that was available were the negative counselings and the Article 15, which were used for the chapter 14 discharge.

	f.  Months after she left the service she was notified that her old counseling packet was located and it had been shredded.
 
3.  The applicant provides:

* her 6-page letter to the Army Discharge Review Board, dated 20 January 2012
* DA Form 2823 (Sworn Statement) from Private First Class (PFC) Ashley F____, Specialist (SPC) Vladimir A___, dated 10 December 2002, and Corporal (CPT) Clyde R. D___
* 26 February 2002 Patient Lab Inquiry
* Standard Form (SF) 600 (Chronological Record of Medical Care), 
dated 1 March 2002
* 24 and 27 February 2002, Records of Medical Treatment 
* DD Forms 689 (Individual Sick Slip), dated 27 February 2002 and 1 March 2002
* MED FC Form 3032 (Triage Data Collection), dated 28 February 2002
* SF Form 558 (Emergency Care and Treatment), dated 28 February 2002 
* Memorandum for Record, 526th Forward Support Battalion, Subject:  Policy Letter 98-09, Equal Opportunity, dated 2 October 1998
* DA Form 4187 (Personnel Action) dated 16 April 2002
* 26 April 2002 Email note, Subject:  PFC B____ Separation Action, from defense counsel
* her unsigned 22 March 2002 memorandum for her company commander, Subject:  Request for Separation Under the Provisions of Army Regulation 635-200, Chapter 15
* her 21 May 2002 memorandum for her company commander, Subject:   Request for Redress Under Article 138 (UCMJ)
* 29 May 2002 memorandum from her company commander, Subject;  PFC B____'s Counseling Packet
* DA Form 4856 (Development Counseling Form), dated 1 May 2002
* letter of recommendation from First Sergeant (1SG) Paul S. C____
* letter of recommendation from Command Sergeant Major (CSM) Wally M____, dated 21 June 2002
* her DD Form 214 (Certificate of Release or Discharge from Active Duty)
* MED FC Form 2366 (Occupational Health Surveillance for Expectant Personnel at Fort Campbell), dated 29 March 2001
* SF 516 (Operation Report) dated 30 April 2001

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.  The 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 the 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 enlisted in the Regular Amy on 30 September 1999.  She completed her training and was awarded military occupational specialty 71G (Patient Administration Specialist).

3.  On 10 March 2000, she was assigned to Headquarters and Headquarters Company, Division Support Command (DISCOM), Fort Campbell, KY. 

4.  On 28 March 2002, she accepted, without appeal, nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, for violation of:

	a.  Article 87 for missing the movement of her unit in 30 January 2002 to the JRTC.

	b.  Article 91 on: 

		(1)  30 January 2002, for willfully disobeying a lawful  order from a senior noncommissioned officer (NCO); being disrespectful in deportment toward a senior NCO; willfully disobeying a lawful order from an NCO; being disrespectful in language toward an NCO; and 


		(2)  18 February 2002, for being disrespectful in deportment toward an NCO (2 incidents) and failing to obey a lawful order from an NCO.

5.  On 26 March 2002, a mental status evaluation report shows that the applicant's behavior was normal.  She was fully alert and oriented and displayed an unremarkable mood.  Her thinking was clear, her thought content normal and her memory good.  The applicant was fit for separation action.

6.  On 18 April 2002, the company commander notified the applicant of contemplated separation with a general discharge under honorable conditions due to a pattern of misconduct.

7.  The applicant consulted with counsel concerning her rights.  She indicated that she elected to make a statement in her own behalf, but no statement is available.  She understood that she could expect to encounter extreme prejudice in civilian life as a result of a general discharge.

8.  The company commander recommended a general discharge, the chain of command concurred, and the separation authority directed the issuance of a general discharge.

9.  On 16 May 2002, the appropriate authority approved the general discharge.

10.  Accordingly, on 28 May 2002, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 14, due to a pattern of misconduct.  She had completed 2 years, 7 months, and 29 days of creditable service

11.  On 19 March 2004, the Army Discharge Review Board (ADRB) denied her request for a change in the character and/or reason for her discharge.  The ADRB determined she was properly and equitably discharged. 

12.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  

   a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline).  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.  

	b.  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.

	c.  Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  It is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her discharge should be upgraded to honorable because of multiple violations by her chain of command that conflict with standard Army policies and procedures.

2.  The record shows the applicant received NJP for violation of Article 87 of the UCMJ by missing movement of her unit, and several violations of Article 91 of the UCMJ for being disrespectful in language, and deportment toward NCOs, and willfully disobeying lawful orders from NCOs.  There is clearly a pattern of misconduct.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize her rights.

4.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

5.  There is no available evidence substantiating the applicant's allegation of sexual harassment.  The sworn statements and other evidence she submitted were all noted, however, they do not mitigate the applicant's misconduct that led to her discharge. 

6.  In view of the foregoing, there is no basis for granting the applicant's request.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL SHEARING

___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 the 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)                                         AR20110001626



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ABCMR Record of Proceedings (cont)                                         AR20120004494



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