BOARD DATE:	  21 August 2014

		DOCKET NUMBER:  AR20140001286 


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 that her general discharge be upgraded to honorable. 

2.  The applicant states that her personal hardships were not taken into consideration and some of the treatment she received was harsh due to gender biases in the military.  Further, she was not given sufficient time to lose weight after the birth of her baby and despite all of her efforts to lose the weight her chain of command had already made a determination to discharge her.  She endured significant psychological abuse for being a female and she had a medical condition that also influenced her weight. 

3.  The applicant provides:

* a self-authored statement
* miscellaneous medical documents and a statement filed in support of a Department of Veterans Affairs (VA) service-connected disability compensation claim
* DD Form 214 (Certificate of Release or Discharge from Active Duty), effective 9 June 1992
* DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice), accepted on 21 December 1989
* DA Form 4856 (General Counseling Form), dated 23 October 1991
* DA Form 4856, dated 2 December 1991 with allied documents
* DA Form 5501-R (Body Fat Content Worksheet (Female)), dated 
23 October 1991

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 24 April 1989 and after completion of training in military occupational specialty 76Y (Unit Supply Specialist) she was assigned to Germany.

3.  Her record also reveals she accepted nonjudicial punishment (NJP) on 
21 December 1989 for failing to go to her appointed place of duty.

4.  Her record reveals a disciplinary history that includes numerous adverse counseling statements for matters such as:

* failure of the diagnostic Army Physical Fitness Test (APFT)
* failure to comply with Army weight control standards
* unauthorized overnight visitor
* failure to report to duty
* failure to repair
* failure to pass the driving test
* failure to prepare for inspection
* failure to report for detail
* being disrespectful toward a noncommissioned officer
* personal appearance
* failure to clean and clear off post family quarters
* failure to pay rent and utilities for living quarters 
* reporting to the Battalion Field Training Exercise without the proper clothing inventory

5.  On 23 February 1990, she completed a mental status evaluation which diagnosed her with mixed personality disorder but determined she had the mental capacity to understand and participate in discharge proceedings.

6.  The complete facts and circumstances of the applicant's release from active duty are not available for review with this case.  

7.  On 31 March 1992, the applicant's first sergeant counseled her regarding the commander's intent to separate her under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13.

8.  On 3 June 1992, the separation authority directed the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, paragraph 1-21c, with the issuance of a General Discharge Certificate.

9.  On 9 June 1992, she was released from active duty with a general discharge and transferred to the U.S. Army Reserve (Reinforcement).

10.  There is no evidence in the available records to show that she applied to the Army Discharge Review Board for an upgrade of her discharge within that board’s 15-year statute of limitations.

11.  Her record is void of medical profiles that would preclude her from successfully completing the APFT or from maintaining Army weight control guidelines. 

12.  She provided a statement wherein she contends that the characterization of her service was unfair and she cannot obtain a government job or receive VA benefits.  In support of this contention she further provided the following:

	a.  A counseling statement, dated 23 October 1991, that she was given for failure to lose weight.  She believes she was not given adequate time to lose the weight after the birth of her baby.  A review of her official military personnel file found the applicant's daughter was born on 13 February 1991.

	b.  A counseling statement, dated 2 December 1991, for failing to pay her rent and utilities for the months of October and November 1991.  She indicated that she had not paid her bills because she had just had a baby and her income as a private first class was not enough to care for her newborn and pay utilities.

	c.  An Article 15 for failing to go to her appointed place of duty on 6 December 1989.  She contends that she was having major complications after having had laproscopic surgery the month prior and was not feeling well that day.

	d.  Physical profile sheets, miscellaneous post-service medical documents, and a statement wherein she contends that she suffered from foot/knee injuries, a personality disorder, degenerative disc disease in her back, and ringing in her ears.  

13.  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.

14.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her general discharge should be upgraded to honorable. 

2.  In the absence of evidence to the contrary, it is presumed her administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized her rights.  Her General Discharge Certificate and the reasons therefore were appropriate considering all of the facts of the case.

3.  Her contentions are noted; however, the available record shows she was counseled for various acts of misconduct to include her personal appearance, failure to report to her place of duty, weight control, APFT failure, failure to met financial obligations, and being disrespectful toward a noncommissioned officer.  In addition she accepted nonjudicial punishment for failing to go to her appointed place of duty.  Her service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  There is insufficient evidence to support her contentions.


4.  In view of the foregoing, her request should be denied.

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)                                         AR20140001286



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ABCMR Record of Proceedings (cont)                                         AR20140001286



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