IN THE CASE OF:	  

		BOARD DATE:  30 July 2013

		DOCKET NUMBER:  AR20130000049 


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, upgrade of her general discharge and change of her narrative reason for separation from "misconduct" to the "convenience of the Government."

2.  The applicant states she was discharged from the Army in Germany.  She had chronic medical conditions that are currently considered service-connected.  These conditions affected her ability to perform her duties.

3.  The applicant provides:

* her DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Department of Veterans Affairs (VA) Rating Decision, dated 19 November 2012

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 2 October 1997 and she held military occupational specialty 91B (Medical Specialist).  She was assigned to Wiesbaden, Germany.

3.  On 8 March 1999, she accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for:

* willfully disobeying a lawful order from a superior commissioned officer on 4 December 1998
* willfully disobeying lawful orders from a superior noncommissioned officer (NCO) between 21 January and 3 February 1999
* failing to go at the time prescribed to her appointed place of duty on multiple occasions between 22 December 1998 and 27 January 1999
* absenting herself from her unit on or about 3 February 1999

4.  On 19 December 1999, she was apprehended by military law enforcement authorities for larceny of a privately owned vehicle (POV), failing to register a POV, larceny of Government property, and failing to obey a lawful general regulation.  She was transported to the Military Police station where she was advised of her rights.  She was processed and released to her unit.

5.  On 1 February 2000, she underwent a mental status evaluation.  She reported to the evaluation quite reluctant but was cooperative throughout the session.  She felt falsely accused of her behavior in the unit and claimed that she was being blamed for her husband's irresponsible actions.  She reported no significant symptoms that would indicate she was suffering from any mental health disorder that would prohibit administrative actions.  She was psychiatrically cleared for any administrative actions deemed appropriate by her chain of command.

6.  On 2 March 2000, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against her in accordance with Army 
Regulation 635-200 (Personnel Separations), chapter 14, paragraph 14-12c, for misconduct - commission of a serious offense.  The specific reasons are cited as the wrongful appropriation of an automobile, failing to register a POV, illegal transfer of U.S. Army Europe (USAREUR) license plates, disobeying a lawful command from a commissioned officer, disrespect to a superior commissioned officer, disobeying a lawful order from a superior NCO, and numerous failures to repair.  He recommended a general discharge.

7.  On 3 March 2000, the applicant acknowledged receipt of the commander's intent to separate her.  She consulted with legal counsel and she was advised of the basis for the contemplated separation action for misconduct, the type of discharge she could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to her.  She requested consideration of her case by a separation board and/or a personal appearance before a separation board.  She also elected to submit a statement in her own behalf.  She acknowledged she understood that:

	a.  If she had less than 6 years of total active and Reserve military service at the time of separation and she was being considered for separation under chapter 14, she is not entitled to have her case heard by an administrative separation board, unless she was being considered for a discharge under other than honorable conditions. 

	b.  She could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to her.

	c.  She could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge

8.  In her statement, she requested the separation authority disapprove the initiated separation action.  She contended that the misconduct was a misunderstanding and a billing dispute with a German auto garage.   

9.  Subsequent to her acknowledgement, the applicant’s immediate commander initiated separation action against her in accordance with Army Regulation
635-200, paragraph 14-12c, for misconduct.  The immediate commander recommended a general discharge.  The intermediate commander recommended approval of the discharge action with the issuance of a General Discharge Certificate. 

10.  On 9 March 2000, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct - commission of a serious offense and directed the applicant be issued a General Discharge Certificate.

11.  On 5 April 2000, the applicant was accordingly discharged.  She completed 2 years, 6 months, and 4 days of creditable active service.  The DD Form 214 she was issued shows in:

* item 25 (Separation Authority) the entry – Army Regulation 635-200, paragraph 14-12c(2) 
* item 26 (Separation Code) the entry – JKK
* item 27 (Reentry Code) – 4
* item 28 (Narrative Reason for Separation) the entry – Misconduct

12.  On 27 May 2002, the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of her discharge and/or change in the reason for her discharge.  On 11 December 2002, after careful review of her application, military records, and all other available evidence, the ADRB determined she was properly and equitably discharged.  As a result, the ADRB denied her petition for an upgrade of her discharge.

13.  However, the ADRB determined there were items on her DD Form 214 that required administrative correction.  Therefore, the ADRB directed the following corrections to her DD Form 214:

* item 25 (Separation Authority) – change to "paragraph 14-12c"
* item 26 (Separation Code) – change to JKQ
* item 27 (Reentry Code) – change to "3"

14.  She submitted a copy of her VA rating decision, dated 19 November 2012, that shows the VA awarded her service-connected disability compensation.

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

	a.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions; a pattern of misconduct; commission of a serious offense, to include abuse of illegal drugs; convictions by civil authorities; and desertion or absence without leave.  Action would be taken to separate a member for misconduct when 
it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  Paragraph 14-12 prescribes the conditions that subject Soldiers to discharge for misconduct.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.

	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. 
16.  Army Regulation 635-5-1 (Separation Program Designator (SPD)) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It states the SPD code JKQ is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12c by reason of misconduct (serious offense).  The SPD/RE Code Cross Reference Table stipulates that an RE-3 code will be assigned to members separated under these provisions with an SPD code of JKQ.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant committed a serious offense in that she wrongfully appropriated an automobile, failed to register her POV, illegally transferred USAREUR license plates, disobeyed orders and/or commands, and had numerous failures to repair.  As such, her chain of command initiated separation action against her.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

2.  She submitted a statement but did not address any medical issues or conditions that caused her misconduct.  The fact that the VA awarded her service-connected disability compensation for unknown conditions does not prove that such conditions were the direct or substantial contributing cause of the conduct that led to her administrative separation.

3.  Disability compensation is not an automatic entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  Here, the applicant's active duty service was interrupted by her serious misconduct, not by any medical conditions. 

4.  Her discharge appears to be appropriate based on the quality of her service.  Her service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  Her actions at the time clearly brought discredit upon herself and the Army.  Based on her record of misconduct her service was unsatisfactory.

5.  In view of the foregoing, there is an insufficient evidentiary 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)                                         AR20130000049



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ABCMR Record of Proceedings (cont)                                         AR20130000049



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