IN THE CASE OF:	  

		BOARD DATE:	 23 May 2013 

		DOCKET NUMBER:  AR20120018068 


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:

* in effect, that the titling action be expunged from the files of the: 

* U.S. Army Criminal Investigation Command (USACIDC, also known as CID) 
* Federal Bureau of Investigation (FBI), Identification Division

* her discharge be upgraded
* the narrative reason for her discharge be corrected

2.  The applicant states:

* she was not formally court-martialed
* it had been 22 years and she has conducted herself to standard
* she is unable to get a job as a social worker because of the results of FBI background checks
* she was not informed she could reenter the military after a certain period of time

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 is requesting that the Defense Clearance Index of Investigations (DCII) be expunged of any records pertaining to the charges of giving a false official statement and failure to pay just debt.  However, there is no evidence showing she has exhausted all administrative remedies available to her.  Specifically, there is no evidence showing she requested an amendment or removal of the titling actions upon which the DCII Index information is based through the USACIDC.  This administrative remedy must be exhausted prior to consideration of her case by this Board.  Therefore, this issue will not be discussed further in this Record of Proceedings.  The applicant has been informed by separate correspondence of the disposition of this portion of her request.

3.  The applicant enlisted in the Regular Army on 22 October 1982.

4.  Her record reveals a disciplinary history that includes several DA Forms 4856 (General Counseling Form) documenting counseling sessions from 9 May 1988 to 29 November 1988 for insubordination, disrespect, and failure to pay just debts.

5.  Her record contains three memoranda which show she was convicted by the Belgian Court on:
	
* 1 December 1987, for driving a vehicle on public roads without insurance 
11 September 1986
* 23 December 1987, for failure to yield the right of way on 10 February 1986
* 14 September 1988, for driving without a valid insurance policy on 
11 September 1986
	
6.  On 8 September 1988, USACIDC ROI 0022-88-XXXXX-XXX stated:

* Probable cause was established to believe that while assigned to the 196th Station Hospital (Belgium) the applicant failed to pay:

* 25 months of delinquent rent to the SOFI totaling $12,485.00 
* electrical services to Intercom totaling $224.00
* telephone service to SHAPE Telephone System totaling $34.00
* water services to Societe Wallone Des Distributors d'Eau totaling $149.00

* the applicant falsified a DA Form 137 (Installation Clearance Record) by signing the document stating she had no personal debts in the area, a statement she knew to be false
* she was advised of her rights, which she waived with her attorney present, and stated she was aware of her debts

7.  On an unspecified date, her unit commander notified her that he was initiating action to separate her from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, paragraph 13-2, for unsatisfactory performance.  The unit commander advised the applicant of her rights to consult with legal counsel, to submit written statements in her own behalf, and to obtain copies of documents that would be sent to the separation authority supporting the proposed separation action.  She was also advised that she could waive these rights in writing.  

8.  On 8 December 1988, having been advised by counsel, she acknowledged:

* she was entitled to and submited a statement on her behalf, stating she would pay her debts after her discharge.
* she requested representation by military counsel
* she understood she may expect to encounter substantial prejudice in civilian life if under honorable conditions discharge was issued to her
* she further understood she would be ineligible to apply for enlistment in the U.S. Army for a period of 2 years after she was discharged
* she retained a copy of this statement 
* she waived the right to a hearing to a separation board conditional upon receipt of a general under honorable conditions discharge

9.  On 12 December 1988, her unit commander recommended that she be separated from the Army under the provisions of Army Regulation 635-200, chapter 13 for unsatisfactory performance.  
10.  Her record contains a DA Form 3822-R (Report of Mental Status Evaluation) in which the examining physician found she had a normal mental status exam and had the mental capacity to understand and participate in the discharge proceedings.

11.  On 9 January 1989, the separation authority approved the applicant's discharge action and directed that the applicant be discharged under the provisions of Army Regulation 635-200, chapter 13, paragraph 13-2, with a General Discharge Certificate.

12.  On 27 January 1989, she was discharged accordingly.  The DD Form 214 she was issued shows in:

* Block 24 (Character of Service) under honorable conditions (General) discharge
* Block 25 (Separation Authority) Army Regulation 635-200, chapter 13
* Block 26 (Reenlistment Code) 3
* Block 28 (Narrative Reason for Separation) "Unsatisfactory Performance" 

13.  There is no evidence that she applied to the Army Discharge Review Board for upgrade of her discharge.

14.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation, in effect at the time, provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory 
Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.

15.  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.


16.  Army Regulation 635-5 (Separation Documents) establishes the policies and procedures for completion and distribution of the DD Form 214.  It states that 
item 28 will list the narrative reason for separation based on regulatory or other authority and can be cross-referenced in Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes).

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that her discharge should be upgraded and the narrative reason for separation changed was found to lack merit.

2.  The evidence of record shows the applicant was recommended for separation under the provisions of Army Regulation 635-200, paragraph 13-2, for unsatisfactory performance with a general, under honorable conditions discharge.  

3.  During her separation process, she acknowledged she could reenlist in the U.S. Army 2 years after she was discharged and waived her entitlement to a separation board based upon receipt of a general, under honorable conditions discharge.

4.  It appears her separation processing was accomplished in accordance with the applicable regulation.  She was recommended for separation based on her record of disrespect, indebtness, and uttering false statements.  

5.  Therefore, there is no justification or reason to change the applicant's narrative reason for separation as her separation was based on unsatisfactory performance or to remove the narrative reason for separation from her DD Form 214.

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 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)                                         AR20120018068





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ABCMR Record of Proceedings (cont)                                         AR20120018068



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