IN THE CASE OF:	  

		BOARD DATE:  22 January 2013

		DOCKET NUMBER:  AR20120010087 


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 her general discharge under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states she wasn't given a fair chance.  She has completed her reserve obligation with an honorable discharge and she is currently trying to get back into the U.S. Army Reserve (USAR) or return to active duty to serve again and complete her career.  She needs an honorable discharge to do so.

3.  The applicant provides her:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 5 June 1995
* orders for discharge from the USAR

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.  She enlisted in the Regular Army on 16 March 1994 for 3 years.  She completed basic combat and advanced individual training and was awarded military occupational specialty 63B (Light Wheel Vehicle Mechanic).

3.  On 25 January 1995, she accepted nonjudicial punishment (NJP) for going, without authority, from her appointed place of duty.

* her punishment included a reduction to private/pay grade E-2 (suspended for 4 months)
* on 22 February 1995, the suspension was vacated and she was reduced to private/E-2 due to dereliction of duty on 4 - 5 February 1995 by failing to remain at her quarters for 72 hours

4.  On 27 January 1995, she was formally counseled for being late for 0630 formation and giving a false statement to the platoon sergeant and a sergeant/pay grade E-5.

5.  On 9 February 1995, she was formally counseled concerning the proper uniform for alternate physical training (PT) for pregnant Soldiers.  

6.  On 21 March 1995, she was given a mental status evaluation by the division psychologist.  The examiner found she met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined she was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.  She was psychiatrically cleared for any administrative action deemed necessary by her command.

7.  On 8 May 1995, her commander notified her he was initiating action to discharge her under the provisions of chapter 13 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for unsatisfactory performance with a general discharge under honorable conditions.  The commander stated his recommendation for discharge was based on her failure to obey a noncommissioned officer (NCO) and her failure to repair (FTR).

8.  The commander advised her of her right to:

* be represented by counsel
* submit statements in her own behalf
* review documents to be presented to the separation authority
* waive any of these rights
* withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves her discharge

9.  On 17 May 1995, she acknowledged she had been advised by consulting counsel of:

* the basis for the contemplated action to accomplish her separation for unsatisfactory performance and its effects
* the rights available to her
* the effect of any action taken by her in waiving her rights

10.  She further acknowledged she might expect to encounter substantial prejudice in civilian life if a general discharge were issued to her.  She acknowledged she understood:

* she was ineligible to apply for enlistment in the Army for 2 years after discharge
* she could make application to the Army Discharge Review Board (ADRB) or the ABCMR for a discharge upgrade, but there was no implication her discharge would be upgraded

11.  She elected to submit a statement in her own behalf.  She stated separation under the provisions of chapter 13 was unwarranted.  She was counseled on 
9 February 1995 for reporting to alternate PT for pregnant Soldiers, in her battle dress uniform (BDU).  At the time they were in a field status and had been reporting to formation in BDU.  She was told to go home and change into PT uniform by a staff sergeant.  However, home was 45 minutes away and there wouldn't be enough time to go all the way home and risk missing PT.  Even though she was in the wrong uniform she still reported and still did PT as usual.  Her PT instructor had no problem with it.  They were in a field status again 
9 - 15 May 1995 and they weren't required to report in PT uniform.  She wanted to remain in the service and go on with her career.  She had been working hard at self improvement to make herself a better Soldier.  She felt her efforts did not warrant a general discharge.  If she was unable to be retained she requested an honorable discharge.

12.  Her commander recommended she be separated from the Army prior to the expiration of her term of service for unsatisfactory performance.  Separation was specifically recommended because of her failure to obey an NCO and FTR.


13.  On 8 May 1995, the appropriate authority:

* waived the requirement for a rehabilitative transfer
* directed she be discharged with a general discharge under honorable conditions
* directed she not be transferred to the Individual Ready Reserve (IRR)

14.  Her DD Form 214 shows that on 5 June 1995 she was released from active duty by reason of unsatisfactory performance under the provisions of chapter 13 of Army Regulation 635-200.  She completed 1 year, 2 months, and 20 days of active service that was characterized as under honorable conditions.  She was transferred to the USAR Control Group (Annual Training).

15.  While in the USAR she was:

* transferred to a troop program unit (TPU) on 20 March 1998
* transferred to USAR Control Group (Reinforcement) due to unsatisfactory participation on 31 May 2002
* transferred to a TPU on 13 February 2003
* honorably discharged on 28 February 2004

She earned 2 qualifying years for retirement pay at age 60 during her period of service in the USAR.

16.  There is no indication she applied to the ADRB for an upgrade of her discharge within the ADRB's 15-year statute of limitations.

17.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.

	a.  Chapter 13 provided for separation of individuals due to unsatisfactory performance when, in the commander's judgment:

* the individual would not become a satisfactory Soldier
* retention would have an adverse impact on military discipline, good 	order, and morale
* the service member would be a disruptive influence in the future
* the basis for separation would continue or recur
* the ability of the service member to perform effectively in the future, 	including potential for advancement or leadership, was unlikely

	b.  Service of Soldiers separated because of unsatisfactory performance was characterized as honorable or under honorable conditions.

	c.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  She accepted NJP on one occasion that included a suspended reduction in grade.  The reduction was subsequently vacated less than 30 days later due to her continued misconduct.  Therefore, she did not meet the standards of acceptable conduct and performance of duty for Army personnel.

2.  She was advised and she acknowledged that she might expect to encounter substantial prejudice in civilian life if a general discharge were issued to her.

3.  The evidence shows she was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would have jeopardized her rights.

4.  In view of the foregoing, there is no basis to upgrade her 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)                                         AR20120010087



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120010087



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1