IN THE CASE OF:	  

		BOARD DATE:	  31 October 2013

		DOCKET NUMBER:  AR20130004425 


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 discharge under other than honorable conditions (UOTHC) from the U.S. Army Reserve (USAR) to an honorable discharge.

2.  The applicant states:

	a.  Her discharge status is incorrect because she was not properly advised on the new contract terms following her 2002 hardship discharge.  A retention sergeant contacted her within 60 days after her separation and advised her that she could return to her unit.  With proper counsel she would have maintained her hardship discharge rather than start a new 6-year enlistment because her goal was to complete her original contract upon return and be separated from the military with an honorable discharge.

	b.  She does not recall the sergeant informing her that her contract would be extended for 3 years nor did she receive a copy of a new contract for her records.  A review of her file will reveal no disciplinary actions against her until the time when her enlistment status changed to the Individual Ready Reserve. She does understand that she should have spoken to the higher command at this point, but she was very depressed.

	c.  She requested a hardship discharge because she had a terminally-ill child. 
Her son passed away in August 2005 and her thought pattern was affected following her loss.  Her discharge UOTHC has affected her career goal of becoming a nurse practitioner.  She is currently a single parent of two children.  She would like to go back to school with support from the Montgomery GI Bill.

3.  The applicant provides no additional evidence.

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 USAR in pay grade E-1 on 16 June 2000 for       8 years.  She was advanced to pay grade E-3 in military occupational specialty 63J (quartermaster and chemical equipment repairer).

3.  There is no evidence in her records in the integrated Personnel Electronic Record Management System (iPERMS) that she received a hardship discharge in 2002.

4.  The complete facts and circumstances surrounding her discharge are not available for review with this case.  However, the Soldier Management System, located on the Army Human Resources Command Integrated Web Service (IWS), Personnel Action Pending and Major Personnel Actions sections, shows her service was characterized as UOTHC and she was discharged for misconduct (other) on 26 January 2007.

5.  On 22 August 2008, the Army Discharge Review Board denied her request for an upgrade of her discharge.

6.  Army Regulation 135-178 (Army National Guard and Army Reserve – Enlisted Administrative Separations) sets forth the policies for the separation of USAR enlisted personnel.  Chapter 12 states Soldiers may be discharged for 

misconduct when it is determined that the Soldier is unqualified for further military 
service by reason of one of more of the following circumstances:  minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, abuse of illegal drugs, and civil conviction.  Separation processing for minor disciplinary infractions or a pattern of misconduct will not be initiated until the Soldier has been formally counseled.

	a.  Paragraph 2-9(a) provides that an honorable discharge is appropriate when the quality of the Soldier'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.

	b.  Paragraph 2-9(b) provides that a general discharge under honorable conditions is appropriate if a Soldier's service had been honest and faithful, it is warranted when significant negative aspects of the Soldier's conduct or performance of duty outweigh positive aspects of the Soldier's military record.

	c.  Paragraph 2-9(c) provides that service may be characterized as UOTHC only when the discharge is for misconduct.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered; however, her record is void of the facts and circumstances which led to her 2007 discharge.  

2.  There is no evidence in her records in iPERMS and she provides insufficient evidence to show she was discharged for hardship in 2002.

3.  The evidence of record shows she was discharged UOTHC for misconduct on 26 January 2007.  It is presumed that all requirements of law and regulation were met and her rights were fully protected throughout the separation process.  There is no evidence and she provided none would indicate the contrary.

4.  She has not provided sufficient evidence or argument to show her discharge should be upgraded or to mitigate the character of her discharge.  Her military records contain no evidence which would entitle her to an upgrade of her discharge.  It is presumed that her misconduct diminished the quality of her service below that meriting an honorable or a general discharge.  There is insufficient evidence to grant her the 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)                                         AR20130004425



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ABCMR Record of Proceedings (cont)                                         AR20130004425



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