IN THE CASE OF:	 

		BOARD DATE:	  3 December 2013

		DOCKET NUMBER:  AR20130005964 


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:

* correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show the entry "recall to active duty in the rank/pay grade of captain (CPT)/O-3E [with prior enlisted service]" with a preference for the U.S. Army Reserve or the Army National Guard
* retroactive promotion to major (MAJ)/O-4 in order to complete 6 years of service and retire
* restoration of military pay and lost wages due to injustice

2.  The applicant states allegations were made by CPT N____ D____ during a 
3-year campaign of malicious and reprehensible actions and behavior to categorically destroy her name, military career, and ministry.  This campaign consisted of lies, deceit, and manipulation based on jealousy and religious hatred.

3.  The applicant provides:

* multiple recent email messages from her to different individuals
* multiple email messages from CPT N____ D____ to her and others
* U.S. Postal Services mailing label
* DD Form 214
* assignment instructions and cancellation
* permanent change of station orders and revocation

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 previously served in the Regular Army in an enlisted status from March 1986 to March 1998.

3.  She was appointed as a Reserve commissioned officer of the Army and executed an oath of office on 13 April 2004.  She completed the Chaplain Officer Basic Course on 3 September 2004.

4.  She entered active duty on 28 October 2004.  She received a Regular Army commission in the rank of CPT on 11 November 2005.  The U.S. Army Human Resources Command adjusted her date of rank to CPT to 22 November 2004.

5.  She was assigned as the Battalion Chaplain, Headquarters and Services Company, 9th Battalion, 101st Aviation Regiment.  She later served in Iraq from 5 October 2005 to 15 September 2006 with the 563rd Support Battalion (Aviation).

6.  She received an annual officer evaluation report (OER) for the rating period 16 March 2005 through 15 March 2006 for her duties as the Battalion Chaplain.  The OER shows:

	a.  Her rater rated her performance and potential for promotion as "Satisfactory Performance, Promote" and commented, in part, that "…as a special staff officer she is lacking the necessary interpersonal and staff skills requisite to be considered a genuine asset.  …has limited potential for continued career in the military."

	b.  Her senior rater rated her performance and potential as "Fully Qualified" and commented, in part, that "…her actions upon our current combat deployment almost immediately resulted in a strained relationship between her ministry, company commanders, and staff peers.  Although she is a good pastor to her congregation and a gifted crisis counselor, she does not display enthusiasm for the military professional aspects of her duties and responsibilities."

7.  Upon return to Fort Campbell, KY, she received an annual OER covering the rating period 16 March 2006 through 15 March 2007 for her duties as the Battalion Chaplain.  The OER shows:

	a.  In the Army Values block, she was rated as "No" for the "Conceptual," "Technical," and "Tactical" skills and as "No" in the "Decision Making" actions.

	b.  Her rater rated her performance and potential for promotion as "Unsatisfactory Performance, Do Not Promote" and commented, in part, "With intermittent productivity, [Applicant's] performance overall was unsatisfactory…the command has lost confidence in her abilities due to numerous issues ranging from inappropriate, unprofessional relationships with enlisted personnel to questionable counseling practices.  …[Applicant] was at the epicenter of a multitude of inquiries as a direct result of either her technical incompetence, poor judgment or questionable decision-making."

	c.  Her intermediate rater commented, in part, "[Applicant's] inconsistent performance…[Applicant's] focused approach to counseling and care for Soldiers is unquestionable, but frequently compromises her judgment and decision making ability resulting in problematic and consequential actions for leadership."

	d.  Her senior rater rated her performance and potential as "Do Not Promote" and commented, in part, "[Applicant] concludes her tenure…in an inconsistent manner.  …her potential and strengths would be best suited for a career outside of the military.  [Applicant]…does not possess the leader attributes to be an asset to the U.S. Army Chaplain Corps.  Do not promote."

8.  The complete facts and circumstances surrounding her discharge are not available for review with this case.  Her records contain:

	a.  Headquarters, 101st Airborne Division, Fort Campbell, KY, 
Orders 261-0604, dated 18 September 2007, ordering her reassignment to the transition point for separation effective 28 September 2007 under the authority of Army Regulation 600-8-24 (Officer Transfers or Discharges); and

	b.  a DD Form 214 that shows she was honorably discharged by reason of substandard performance on 28 September 2007 under the provisions of Army Regulation 600-8-24, paragraph 4-2a.  She was assigned a separation program designator (SPD) code of "JHK."

9.  There is no indication in her records that she was selected for promotion to MAJ prior to her discharge.

10.  She provides multiple email messages to and/or from CPT N____ D____ as well as other individuals.  The email describes issues of jealousy, love, hatred, rape, bi-sexuality, God, deceit, he said/she said, and other issues they encountered during their deployment.  None is supported with evidence, such as reports of investigation, police reports, equal opportunity reports, inspector general complaints, memoranda for record, commander's inquiries, or similar reports.

11.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The ABCMR considers individual applications that are properly brought before it.  In appropriate cases, it directs or recommends correction of military records to remove an error or injustice.  The ABCMR will decide cases on the evidence of record.  It is not an investigative body.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

12.  Army Regulation 600-8-24 prescribes the officer transfers from active duty to the Reserve Component and discharge functions for all officers on active duty for 30 days or more.  It provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required to support officer transfers and discharges.  Chapter 4 covers eliminations.

	a.  Paragraph 4-1 states an officer is permitted to serve in the Army because of the special trust and confidence the President and the nation have placed in the officer's patriotism, valor, fidelity, and competence.  An officer is expected to display responsibility commensurate to this special trust and confidence and to act with the highest integrity at all times.  However, an officer who will not or cannot maintain those standards will be separated.

	b.  Paragraph 4-2 lists several reasons for elimination and while not all inclusive, when one of the following or similar conditions exist, elimination action may be or will be initiated as indicated below for substandard performance of duty.  Examples are a downward trend in overall performance resulting in an unacceptable record of efficiency or a consistent record of mediocre service; failure to keep pace or to progress with contemporaries, as demonstrated by a low record of efficiency when compared with other officers of the same grade and competitive category; failure to exercise necessary leadership or command expected of an officer of his or her grade; failure of an officer to absorb technical proficiency required for grade and competitive category; failure to properly perform assignments commensurate with an officer's grade and experience; apathy, defective attitudes, or other characteristic disorders, to include inability or unwillingness to expend effort; failure to conform to prescribed standards of dress, personal appearance, or military deportment; and several others.

13.  Army Regulation 600-8-29 (Officer Promotions) prescribes the officer promotion function of the military personnel system.  Promotion to MAJ requires selection by a promotion board.  The names of those officers recommended and approved for promotion are placed, in order of their seniority on the Active Duty List on promotion lists published by the U.S. Army Human Resources Command. Separate lists will be published and maintained for each board.  Promotion is announced in the promotion order.

14.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers upon retirement, discharge, or release from active duty service or control of the Active Army.  It establishes standardized policy for preparing and distributing the DD Form 214.  The regulation prescribes authorized entries for the DD Form 214.

15.  Army Regulation 635-5-1 (Separation Program Designator Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The SPD code of "JHK" is the correct code for Regular Army Soldiers separated from active duty by reason of substandard performance under the provisions of Army Regulation 600-8-24, chapter 4.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records are void of the facts and circumstances that led to her discharge.  However, her records contain a DD Form 214 that shows she was discharged by reason of substandard performance on 28 September 2007 under the provisions of Army Regulation 600-8-24, paragraph 4-2a.

2.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant has provided no information that would indicate the contrary.  Further, it is presumed that the applicant's discharge accurately reflects her overall record of service during this period.

3.  She provides multiple email messages to and/or from CPT N____ D____, as well as other individuals.  The email describes issues of jealousy, love, hatred, rape, deceit, he said/she said, and other issues they encountered during their deployment.  However, none of the email is supported with evidence, such as reports of investigation, police reports, equal opportunity reports, inspector general complaints, memoranda for record, commander's inquiries, or similar reports.

4.  The applicant was never selected for promotion to MAJ by a promotion board. 
With a date of rank to CPT of 22 November 2004 and a discharge date of 28 September 2007, she would not have been eligible for consideration for promotion to MAJ.  She is not entitled to this portion of her request.  Additionally, she is not entitled to pay after her discharge since she was no longer in the military and she did not perform any military service.

5.  There is no provision to enter "recall to active duty in the rank/pay grade of captain (CPT)/O-3E [with prior enlisted service]" with a preference for the U.S. Army Reserve or the Army National Guard on her DD Form 214 as she requests.  Further, the ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.

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)                                         AR20130005964



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ABCMR Record of Proceedings (cont)                                         AR20130005964



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