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		IN THE CASE OF:	  

		BOARD DATE:  25 September 2012

		DOCKET NUMBER:  AR20120004736 


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 honorable and amendment of her narrative reason for separation to read "general reasons – uncharacterized" with a corresponding separation code.

2.  The applicant states:

* she was a victim of rape and sexual harassment by her superiors who threatened her with separation if she did not accede to their requests
* when she did not, adverse actions were taken against her on several occasions which were followed by separation
* after her separation there was a court hearing in Colorado Springs and  the reasons for the adverse action were proven to be false
* she was told she could have her records corrected because of this judgment
* she was so depressed and scared at the time that she did not take any action to do so
* this has caused her a lifetime of anxiety and problems with men
* her personal life is ruined
 
3.  The applicant provides her DD Form 214 (Certificate of Release or Discharge from Active Duty).



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 enlisted in the Regular Army on 8 January 1999.  She completed training and was awarded military occupational specialty 71L (administrative specialist).  On 14 August 2002, she was honorably discharged for immediate reenlistment.  On 15 August 2002, she reenlisted for a period of 3 years and a $3,000.00 bonus.

3.  On 22 October 2002, nonjudicial punishment (NJP) was imposed against her for failing to go to her appointed place of duty (two specifications), being disrespectful in deportment to a sergeant (two specifications), and disobeying lawful orders (two specifications).

4.  On 29 January 2003, discharge proceedings were initiated against her under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b, for misconduct (pattern of misconduct).

5.  She consulted with counsel on 4 February 2003 and acknowledged that she might encounter substantial prejudice in civilian life if a general discharge were issued to her.  She elected to submit a statement on her own behalf.  In summary, she stated:

* she wanted to remain in the Army
* she was a good Soldier
* she was harassed by a sergeant
* she went to her supervisor, a sergeant first class (SFC), but nothing was done
* she went to the command sergeant major who spoke to the SFC and then the sergeant left her alone
* she received an Article 15 without ever seeing a lawyer

6.  Her battalion commander strongly recommended approval of her separation.  In a letter, dated 13 February 2003, he stated the applicant's sexual harassment complaints against an SFC were found to be unsubstantiated following a formal investigation and a formal Equal Opportunity complaint.

7.  On 3 March 2003, the separation authority approved the recommendation for the applicant's discharge and directed the issuance of a general discharge.

8.  She was discharged under honorable conditions (general) on 11 March 2003 under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct (pattern of misconduct).  She completed a total of 4 years, 2 months, and 4 days of creditable active service.

9.  Her DD Form 214 shows in:

* item 25 (Separation Authority) – "[ARMY REGULATION] 635-200, [PARAGRAPH] 14-12B"
* item 26 (Separation Code) – "JKA"
* item 28 (Narrative Reason for Separation) – "MISCONDUCT"

10.  On 30 July 2004, the Army Discharge Review Board denied the applicant's request for an honorable discharge.

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 (military or civilian 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.

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.

13.  Army Regulation 635-200, paragraph3-9, prescribes that a separation will be described as entry-level with service uncharacterized if processing is initiated while a Soldier is in entry-level status.  For Regular Army Soldiers, entry-level status is the first 180 days of continuous active duty or the first 180 days of continuous active duty following a break of more than 92 days of active military service.

14.  Army Regulation 635-5-1 (Separation Program Designator Codes (SPD)) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD code to be used for these stated reasons.  The regulation states the reason for a discharge based on an SPD code of "JKA" is "misconduct" and the regulatory authority is Army Regulation 635-200, paragraph 14-12b.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that she was a victim of rape and sexual harassment by her superiors was noted.  However, in February 2003 her battalion commander stated her sexual harassment complaints were found to be unsubstantiated following a formal investigation and a formal Equal Opportunity complaint.

2.  The applicant contended that after her separation a court hearing proved that the reasons for the adverse action were proven to be false, but she provided no documents to show what that court hearing was about.

3.  Her record of service included NJP for various offenses.  As a result, her record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

4.  Her administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize her rights.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

5.  Her narrative reason for separation and separation code are correct and were applied in accordance with regulatory guidance.  Therefore, there is no basis for granting the applicant's request to change her narrative reason for separation or separation code.

6.  In view of the foregoing, there is no basis for granting the applicant's 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 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)                                         AR20120004736



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ABCMR Record of Proceedings (cont)                                         AR20120004736



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