IN THE CASE OF:	  

		BOARD DATE:	  23 September 2014

		DOCKET NUMBER:  AR20140001676 


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 reinstatement to active duty or a change of the narrative reason for separation, reenlistment eligibility code, and separation code.

2.  The applicant states she received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ).  All she did was say to the first sergeant (1SG), "I don’t care about you either, 1SG."  This 
so-called misconduct was used as an excuse to railroad her out of the Army.  Additionally:

	a.  it just doesn't seem right that her 18 1/2 year career should have been ruined by this minor incident.  After they decided to discharge her, the chain of command created a large file of discrediting counseling statements;

	b.  NJP is supposed to be used as a rehabilitation tool.  She wasn't provided with any rehabilitation or given sufficient time to adjust to the changing Army;

	c.  many noncommissioned officers (NCOs) seem to resent senior officers.  A staff sergeant got right in her face, apparently, because he had never before had the opportunity to stare down an officer.  It frightened her on a personal level;

	d.  a private first class, who she thought was the girlfriend of one of the cadre, used to come around just to insult her; and

	e.  She should be brought back on active duty and given a chance to retire or at least have the reason for separation and the reenlistment and separation coded changed

3.  The applicant provides copies of – 

* her DD Form 214 (Certificate of Release or Discharge from Active Duty)
* letters from the Army Discharge Review Board and Army Review Boards Agency
* a webpage printout from Wikipedia 
* DA Form 2627 (Record of Proceedings under Article 15, UCMJ)
* Article 15 Worksheet
* Army Regulation 635-200 (Administrative Enlisted Separations)
* Applicant's personal statement to the Board, dated 17 January 2014 (reflected in paragraph 3 above) 

CONSIDERATION OF EVIDENCE:

1.  Various DD Forms show she –

* enlisted in the Regular Army, served from November 1987 to April 1992 
(4 years, 5 months, and 7 days), attended Officer Candidate School, and was discharged as a sergeant to serve on active duty as an officer
* served on active duty as a U.S. Army Reserve (USAR) officer from April 1992 to September 1995 (3 years, 5 months, and 14 days) and was released from active duty as a first lieutenant
* served on active duty as a USAR officer from September 1997 to August 1999 and was discharged as a 2nd lieutenant due to unacceptable conduct
* enlisted in the Connecticut Army National Guard in December 2006 and served until December 2007 (1 year) and was separated as a sergeant 
* enlisted in the Regular Army on 4 February 2003 as a sergeant and was separated, 8 April 2003, with an uncharacterized discharge for personality disorder
* enlisted and served in the ARNG from December 2006 to December 2007

2.  The applicant again enlisted in the Regular Army as a sergeant (E-5) on 
18 March 2009.

3.  Numerous counseling statements show the applicant was counseled for showing a lack of respect and military bearing.  She generally responded by saying she didn't get the help and support she needed or the respect due her as an NCO.
4.  On 13 September 2009, a Report to Suspend Favorable Actions (Flag) was filed.  Subsequently:

	a.  Counseling statements show –

(1)  on 18 September she was not participating in remedial instruction and unprofessional behavior – she maintained that she was trying her best and getting screamed at.  She needed help.  As a three time combat veteran with 10 plus years of active duty and 3 years as an officer with many awards and campaign medals she thought she'd receive more support and camaraderie from her peers 

(2)  on 21 September she displayed conduct unbecoming an NCO during an academic counseling session and during a follow-on administrative counseling session where she continued the same disrespectful behavior
	
	b. Other information shows –

(1)  a fellow student reported that on 11 December 2009 she had witnessed the applicant "verbally diminish" a private at the physical training formation

(2)  a sergeant first class (SFC) wrote a lengthy report about the applicant's demeanor and conduct in the post exchange parking lot on 
17 December.  It began with the applicant failing to greet the SFC.  When reminded that a greeting to a senior NCO was customary the applicant continually rolled her eyes and interrupted.  The applicant refused to identify herself and her unit, then she walked away and cut diagonally across the parking lot so that the SFC, who was on crutches, could not follow.  The incident ultimately involved a colonel and another SFC and ended with the applicant mocking them.

5.  On 13 January 2010 the applicant accepted NJP for willful disobedience of a captain who ordered her to remain quiet during her counseling for disrespect to an SFC by saying, "I don't care about you" and for disrespect to a 1SG by saying, "I don't care about you either."  

6.  The battalion commander imposed punishment consisting of reduction to pay grade E-4, forfeiture of $1,109 per month for 1 month (suspended for 60 days), extra duty for 15 days, and restriction for 14 days.  The applicant did not appeal.

7.  On 18 March 2010, the applicant acknowledged the company commander's notification that he intended to recommend discharge for misconduct.
8.  The applicant consulted with counsel, waived her rights to have her case considered by a board of officers and did not submit statements in her own behalf.  She also acknowledged that she might expect to encounter substantial prejudice in civilian if she were to be separated with a general discharge. 

9.  A psychiatric examination conducted in consonance with her separation physical examination found her qualified for administrative proceedings and continued, …"Though she may not feel she deserves consequences, she is aware of the rules she has violated and is cognizant of right and wrong…Pt is aware of her actions and has exhibited a mental status within normal limits…"

10.  The company commander recommended separation.  The intermediate commander recommended a general discharge and the separation authority so directed. 

11.  On 26 March 2010, she was separated with a general discharge under the provisions of Army Regulation 635-200, paragraph 14-12a, misconduct by minor disciplinary infractions.  She was assigned an RE code of "3" and a Separation Program Designator (SPD) code of "JKN."

12.  On 29 July 2013, the Army Discharge Review Board considered the applicant's requests and upgraded the characterization of her discharge to honorable but declined to change the reason.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is 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.  





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. 

   a.  It shows that the SPD code "JKN" is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12a.

   b.  The SPD/RE Code Cross Reference Table states that an RE code of "3" will be assigned to members separated with an SPD code of "JKN."

15.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the USAR.  Table 3-1 includes a list of the RA
RE codes and shows that RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  That is, they are ineligible for enlistment unless a waiver is granted.

16.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A dishonorable discharge is authorized for conviction of willful disobedience of a commissioned officer and a bad conduct discharge is authorized for conviction of disrespect to a superior ranking NCO.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests restoration to active duty or a change of the narrative reason for separation, separation code, and reenlistment code. 

2.  The applicant relates that she was disrespectful to a superior ranking NCO and indicates that she considers this a minor offense.  However, she did this twice.  Much more importantly, she also willfully disobeyed the direct order of a commissioned officer, an offense so serious that had she have been convicted by a general court-martial she could have been sentenced to a dishonorable discharge.  The applicant's behavior was not some meaningless technicality; it was callous disregard for the very foundation of military discipline.

3.  The applicant waived her right to a hearing before a board of officers and to submit statements in her own behalf.

4.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time. 
5.  The applicant was separated and assigned a reentry code in accordance with regulations in effect.  In view of the circumstances in this case, the assigned reentry eligibility code was and still is appropriate and a restoration is not appropriate.

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)                                         AR20140001676





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ABCMR Record of Proceedings (cont)                                         AR20140001676



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