BOARD DATE:	  16 April 2013

		DOCKET NUMBER:  AR20120018167 


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 (GD) be upgraded to an honorable discharge (HD).

2.  The applicant states she served in the Army honorably and to the best of her ability.  It has been 15 years since she was discharged and she now finds herself homeless and in need of assistance from the Department of Veterans Affairs (VA).

3.  The applicant provides copies of two Letters of Appreciation and two copies of 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 1 July 1981, completed training, and was awarded military occupational specialty 94B (Food Service Specialist).

3.  The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, as follows:

	a.  on 22 February 1982, for disrespectful language toward a noncommissioned officer and failure to go to her place of duty;

	b.  on 18 August 1982, for disrespect toward a commissioned officer;

	c.  11 January 1983, for disrespectful language toward a noncommissioned officer; and

	d.  on 3 February 1983, for use of reproachful words toward a noncommissioned officer.

4.  In addition to her NJP's, she also received four negative official counseling statements for disciplinary infractions unrelated to her NJPs.  

5.  The record also contains various other incident reports and statements:

* two statements related to her disrespectful language toward medical personnel
* six statements related to her disrespectful language and/or attitude toward her shift supervisor
* seven statements for disrespectful language toward other personnel in positions of authority over her

6.  On 15 February 1983, separation proceedings was initiated under Army Regulation 635-200 (Personnel Separations-Enlisted Personnel); paragraph 13-9, for unsatisfactory performance.

7.  On 16 February 1983, after consulting counsel, she acknowledged the proposed separation action and waived her rights to counsel, to appear in person or have her case heard by a board of officers, or to submit a statement on her own behalf.  She acknowledged that she could expect to encounter substantial prejudice in civilian life if discharged with a GD. 

8.  The discharge authority approved the separation and directed she receive a GD.

9.  The applicant was discharged with a GD on 9 March 1983.  She had 1 year, 8 months, and 9 days of active duty.

10.  The applicant provides two Letters of Appreciation for her work in preparing the 1981 Thanksgiving Day Feast.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It provides the following:

	a.  Paragraph 3-7a states an honorable discharge (HD) is a separation with honor.  The honorable characterization of service is appropriate when the quality of a Soldier’s service has met the standards of acceptable conduct and performance of duty.  

	b.  Paragraph 3-7b states a GD is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge. 

	c.  Chapter 13, in effect at the time, provided for separation 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; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, was unlikely.  Service of Soldiers separated because of unsatisfactory performance under this chapter was to be characterized as honorable or under honorable conditions.

DISCUSSION AND CONCLUSIONS:

1.  The applicant received 4 NJP's, 4 official negative counseling statements, and 15 other negative incident reports or statements, most related to disrespect toward personnel in positions of authority over her.  

2.  Her record of disrespect toward persons in authority shows her retention would have had an adverse impact on military discipline, good order and morale and impact her ability to perform effectively in the future. 

3.  The discharge proceedings were conducted in accordance with the law and regulations applicable at the time.  The character of the applicant's discharge is commensurate with the nature of her performance and is appropriate for her overall record of military service. 

4.  While her two Letters of Appreciation do not demonstrate service that was so meritorious as to outweigh the negative factors in her record, they do demonstrate she could have preformed her duties in a satisfactory manner.

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)                                         AR20120018167





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ABCMR Record of Proceedings (cont)                                         AR20120018167



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