IN THE CASE OF:    

		BOARD DATE:  14 October 2014	  

		DOCKET NUMBER:  AR20140003081 


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 general, under honorable conditions discharge.

2.  She states all the documentation leading up to her discharge stated that she would receive a fully honorable discharge.  The characterization of service on her DD Form 214 (Certificate of Discharge or Release from Active Duty) shows general, under honorable conditions and she would like this corrected. 

3.  The applicant provides:

* DD Form 214
* Chapter 14 separation packet
* two letters of appreciation 
* a letter of congratulations
* Army Good Conduct Medal certificate

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's military records are not available for review.  However, there were sufficient documents remaining in a reconstructed record and documents provided by the applicant to conduct a fair and impartial review of this case.

3.  Her DD Form 214 shows she enlisted in the Regular Army on 1 July 1986.  After completion of training, she served in military occupational specialty 71L (Administrative Specialist).  The highest grade of rank she attained while serving on active duty was specialist four/E-4.

4.  She provided the following evidence:

* Letter of Appreciation, dated 14 November 1987, for her participation in the Pageant of Flags ceremony
* Army Good Conduct Medal for the period 1 July 1986 to 30 June 1989
* Letter of Appreciation, dated 8 March 1991, for helping the Fort Carson, CO, District Office for annual training from 23 February to 9 March 1991
* Memorandum For All Qualified Soldiers, subject:  Special Forces Recruiting Team Visit, dated 15 August 1991, congratulating her for meeting the initial qualifications to become a member of the U.S. Army's Special Forces

5.  The facts and circumstances surrounding her separation action are not contained in the available records.  However, the applicant provided her separation packet and DD Form 214 through the Butler County, OH, Veterans Service Commission.

   a.  On 6 November 1991, the applicant's commander informed her he was initiating action to separate her under the provisions of Army Regulation 635-200 (Personnel Separation – Enlisted Personnel), paragraph 14-12a, for misconduct for minor disciplinary infractions.  The reasons for his proposed actions were she failed to report to her appointed place of duty on several occasions and had received a bar to reenlistment.  The commander recommended she receive an honorable discharge.
   
      b.  On 6 November 1991, she acknowledged she had been advised by counsel of the basis for the contemplated separation action and its effects, the rights available to her, and the effect of a waiver of her rights.

      c.  She voluntarily waived consideration of her case by an administrative separation board contingent upon her receiving a characterization of service of no less than honorable.  She submitted a statement in her own behalf and admitted she was making this request of her own free and had not been subject to any coercion whatsoever by any person. 

      d.  She also stated that she understood if the separation authority refused to accept the conditional waiver of a hearing before an administrative board that her case will be referred to an administrative separation board then she would request a personal appearance before the board and to be represented by counsel. 

      e.  In her statement she requested removal of the commander's reference to her wrongfully leaving her appointed place of duty because this allegation had been clarified by her first sergeant.  Accordingly, her commander lined thru this portion of his reasons for the separation action and placed his initials.
    
6.  On 6 November 1991, the commander initiated the separation action under the provisions of Army Regulation 635-200, paragraph 14-12a for minor disciplinary infractions.  This document refers to a record of counseling; record of other disciplinary action including nonjudicial punishment; a mental status evaluation; and other derogatory material other than an Article 15.  These documents were not provided with this separation packet.  The commander recommended the applicant receive an honorable discharge. 

7.  A series of endorsements from her intermediate chain of command recommended she receive an honorable discharge and forwarded the separation action to the General Court-Martial Convening Authority (GCMCA), the 4th Infantry Division and Fort Carson, CO, Commanding General for approval.  The decisional document from the GCMCA was not provided with this separation packet.``

8.  She provided her DD Form 214 that shows she was discharged on 
10 January 1992, and her characterization of service was listed as under honorable conditions (general).  Blocks 25 (Separation Authority); 26 (Separation Code); and 27 (Reentry Code) are blackened out.  Block 28 (Narrative Reason for Separation) shows "misconduct - minor disciplinary infractions."

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel:

   a.  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.  Only a GCMCA may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.  
   
   b.  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.

   c.  Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

10.  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 regulation provides that 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.

DISCUSSION AND CONCLUSIONS:

1.  She contends that the documentation leading up to her discharge stated that she would receive a fully honorable discharge.  While her entire chain of command recommended she receive an honorable discharge, this authority is only given to the GCMCA unless he or she further delegates this authority.

2.  The separation packet provided by the applicant did not contain the decisional document from the GCMCA or from his delegate.  There is a presumption of administrative regularity in the conduct of governmental affairs.  In this instance, the "presumption of regularity" is based on Army Regulation 15-185 which states the ABCMR begins its consideration of each case with the presumption of administrative regularity and that the applicant has the burden of proving an error or injustice by a preponderance of the evidence.

3.  She has not provided sufficient evidence or a convincing argument to show she was unjustly discharged.  Her DD Form 214 shows she was discharged for misconduct - minor disciplinary infractions and received a general, under honorable conditions characterization of service.

4.  Therefore, in the absence of evidence to the contrary, it reasonable to presume that the applicant was properly and equitably discharged in accordance with the regulations in effect at that time, that all requirements of law and regulations were met, and her rights were fully protected throughout the separation process.  In view of the foregoing, she is not entitled to 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 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)                                         AR20140003081





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ABCMR Record of Proceedings (cont)                                         AR20140003081



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