IN THE CASE OF:	  

		BOARD DATE:	  28 August 2014

		DOCKET NUMBER:  AR20140001364 


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 under honorable conditions discharge to a fully honorable discharge.  She further requests removal of "misconduct" as her narrative reason for separation. 

2.  The applicant states she is currently the supply sergeant for Headquarters and Headquarters Company, 364th Sustainment Command.  She has obtained two degrees and holds two Army military occupational specialties.  She has grown to appreciate the Army values and what they stand for.

3.  The applicant provides:

* 2 DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* Orders R-05-286389
* 3 DA Forms 2166-8 (Noncommissioned Officer (NCO) Evaluation Report)
* 4 pages of college transcripts
* 2 diplomas

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 28 March 1995.

3.  The applicant received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on:

* 22 December 1995, for disobeying a lawful order 
* 14 November 1996, for failing to go at the time prescribed to her appointed place of duty twice

4.  The evidence contained in the applicant's record shows she received numerous counseling's for missing formation, substandard duty performance, being disrespectful, improper wear of the uniform, dishonored checks, and indebtedness. 

5.  On 11 December 1996, the applicant's immediate commander notified her of his intent to initiate separation action against her in accordance with paragraph 14-12b, of Army Regulation 635-200 (Personnel Separations) for a pattern of misconduct.  He recommended a general discharge.

6.  On 11 December 1996, the applicant acknowledged receipt of the notification, subsequently consulted with legal counsel, and was advised of the basis for the contemplated separation action, the possible effects of a discharge, and of the rights available to her.  The applicant provided a statement in which she acknowledged that she was not proud of the allegations that led to the initiation of her proposed separation action and did not take full responsibility for her actions.  She stated her conduct was impacted due to stress resulting from her father's foot amputation, being hit by a drunk driver, and for no longer having a valid family care plan to support her daughter.  She further requested a second chance and a rehabilitative transfer to overcome her deficiencies.

7.  On 13 December 1996, the applicant's immediate commander initiated separation action against the applicant in accordance with paragraph 14-12b of Army Regulation 635-200 for a pattern of misconduct.  The commander stated separation was recommended because the applicant disobeyed an NCO which resulted in her being punished under the UCMJ.  She failed to be at her place of duty which resulted in her being punished under the UCMJ.  She missed accountability formation on many occasions; was disrespectful toward an NCO; continued to write checks despite not having sufficient funds in her account; failed to follow instructions on several occasions; and was ordered to stay out of the 5th Special Forces Garrison area because she damaged another Soldier's property, used bad language, and disturbed the company.

8.  On 2 January 1997, the separation authority approved the applicant's discharge under Army Regulation 635-200, paragraph 14-12b, and directed that her service be characterized as General, Under Honorable Conditions.

9.  On 13 January 1997, the applicant was discharged accordingly.  Her DD Form 214 shows:

* her service was characterized as under honorable conditions
* she was discharged under the provisions of Army Regulation 635-200, paragraph 14-12(b)
* her separation program designator (SPD) code was JKA
* her Reentry Code (RE) code was 3
* her narrative reason for separation was "Misconduct"

10.  There is no indication the applicant petitioned the Army Discharge Review Board for an upgrade of her discharge within that board's 15-year statute of limitations.

11.  The applicant provides evidence to show she is currently an NCO in good standing in the U.S. Army Reserve (USAR).  She also provides her post-secondary education transcripts and two diplomas.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.  

13.  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.

14.  Army Regulation 635-5-1 (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 that SPD code JKA is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12(b), for misconduct.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to upgrade her discharge and to remove the narrative reason of "misconduct" from her DD Form 214 was carefully considered and determined to be without merit.

2.  The available evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized her rights.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects her overall record of service.

3.  The applicant's record includes evidence which shows she was repeatedly counseled yet she failed to respond accordingly.  Ultimately, she received NJP on two occasions and was properly discharged.  The evidence also shows the applicant was assigned the appropriate SPD code of JKA at the time of her discharge.

4.  The fact the applicant is currently serving in the USAR is duly noted.  However, the applicant's acts and service subsequent to her offenses do not justify an upgrade to her previous discharge.

5.  Based on her record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, she is not entitled to an upgrade of her general discharge to an honorable discharge or removal of the narrative reason of "misconduct" from her DD Form 214.







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)                                         AR20140001364



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ABCMR Record of Proceedings (cont)                                         AR20140001364



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