IN THE CASE OF:	   

		BOARD DATE:	  30 April 2015

		DOCKET NUMBER:  AR20140016009 


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 her general, under honorable conditions discharge be upgraded to honorable.

2.  The applicant states when she was in the Army she was discriminated against by her commander and first sergeant (1SG).  They were prejudiced because she was a minister for Jesus.  The commander was harsh towards her, kept her from being promoted, gave her an unsatisfactory performance [rating], and issued her a general discharge.  She couldn't perform her best; she should have been given a medical discharge because of her mental health.  She received a Letter of Commendation on 24 April 1980 and an Army Good Conduct Medal on 1 July 1982.  In the church, the Lord called her to "secondarily prophets." 

3.  The applicant provides her DD Form 214 (Certificate of Release or Discharge from Active Duty), a letter, and orders.

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 15 May 1979 and she held military occupational specialty 75C (Personnel Management Specialist).  She served in Germany from 10 November 1979 to 7 November 1981 while assigned to the 178th Personnel Service Company (PSC).  

3.  She provides a Letter of Commendation, dated 24 April 1980, wherein her commander commended her for her outstanding devotion to duty during his tenure as commander of the 178th PSC.  On 13 June 1981, she was promoted to the rank/grade of private first class (PFC)/E-3.

4.  On 9 November 1981, she was assigned to Headquarters and Headquarters Company, U.S. Army Transportation Center and Fort Eustis, Fort Eustis, VA.

5.  Between 25 March and 2 July 1982, she was counseled on numerous occasions by various members of her chain of command for repeatedly being late for work, repeatedly failing to report to her appointed place of duty at the required time, intentionally failing to perform her job correctly, having an apathetic attitude, failing to follow instructions in the performance of her assigned duties, failing to accept responsibility, performing her work poorly, and for behaving in an unbecoming and unprofessional manner.

6.  She provides orders, dated 1 July 1982, wherein it shows she was awarded the Army Good Conduct Medal (1st Award) for the period 15 May 1970 to 14 May 1982.

7.  On 6 July 1982, she was reported as absent without leave (AWOL) from her assigned unit.  She was apprehended by military authorities at Fort Rucker, AL, and returned to her assigned unit on 12 July 1982.  

8.  On 14 July 1982, she received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for being AWOL from 6 to 12 July 1982.  The punishment imposed was 14 days extra duty and restriction, and a forfeiture of $100 pay which was suspended for 90 days.

9.  Between 16 September and 5 October 1982, she was counseled by various members of her chain of command for failing to follow instructions, demonstrating a poor attitude toward her peers and senior leaders, and for behaving in an unbecoming and unprofessional manner.
10.  On 8 October 1982, she underwent a mental status evaluation.  The examining physician found her behavior was normal, she was fully alert and oriented, her mood was unremarkable, and her thinking process was clear and thought content normal.  He stated she met retention standards under the provisions of Army Regulation 40-501 (Standard of Medical Fitness), chapter 3.  She was cleared for any administrative action deemed appropriate by her chain of command.

11.  On 12 November 1982, she was notified by her immediate commander that discharge action was being initiated against her under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 13, for unsatisfactory performance and a general discharge was being recommended.  She acknowledged receipt of the proposed discharge action.  

12.  On 15 November 1982, she consulted with legal counsel and was advised of the basis for the contemplated separation action, the effect on future enlistment in the Army, and she was advised of the procedures and rights available to her.  She acknowledged she understood that she may expect to encounter substantial prejudice in civilian life if she was issued a general discharge.  She declined to submit a statement in her own behalf.  On 1 December 1982, her senior commander recommended approval of the discharge action.

13.  On 15 December 1982, the separation authority approved her discharge for unsatisfactory performance and directed the issuance of a General Discharge Certificate.  On 21 December 1982, she was discharged accordingly.

14.  The DD Form 214 she was issued shows she was discharged under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance with an under honorable conditions characterization of service.  

15.  Her DA Form 2A (Personnel Qualification Record), dated 13 October 1982, shows her PULHES as 111111.

16.  Her record is void of any evidence, and she did not provide any evidence, that shows while serving on active duty she was treated for, or diagnosed with a mental/medical condition/disorder that permanently prevented her from performing her assigned duties, was found to be unfitting, or required referral to a medical evaluation board (MEB) or physical evaluation board (PEB).  There is no evidence that shows she ever received a permanent profile of "3" that would require referral to an MEB/PEB. 

17.  On 26 April 1985, the Army Discharge Review Board denied her request for an upgrade of her discharge and determined her discharge was both proper and equitable.

18.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states MEB's/PEB’s are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualification for retention based on the criteria in Army Regulation 40-501.  

19.  Army Regulation 635-40 further states the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature/degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before that service member can be medically separated or retired.

20.  The Army physical profile serial system is based primarily upon the function of body systems and their relation to military duties.  The functions of the various organs, systems, and integral parts of the body are considered.  An individual having a numeric designation of "1" under all factors is considered to possess a high level of medical fitness.  A physical profile designator of "2" under any or all factors indicates an individual possesses some medical condition or physical defect that may require some activity limitations.  A profile containing one or more numerical designations of "3" signifies the individual has one or more medical condition that may require significant limitations.  A permanent profile of "3" would require referral to an MEB.

21.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance and provides that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.




22.  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 evidence of record confirms the applicant demonstrated she could not or would not meet acceptable standards required of enlisted personnel as evidenced by the numerous adverse counseling and NJP she received for being AWOL.  Accordingly, her immediate commander initiated separation action against her.

2.  Her separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized her rights.  The type of discharge directed and the reason for discharge were therefore appropriate considering all the facts of the case. 

3.  Notwithstanding her contention that her commander and 1SG were prejudiced against her, her record shows she was repeatedly counseled by various members of her chain of command for several months for unsatisfactory duty performance, an apathetic attitude, and her unwillingness to follow instructions.  It appears her commander was very lenient with her as he gave her plenty of time to correct her deficiencies yet she failed to do so.  Discharge action was started after she went AWOL and continued poor performance and an apathetic attitude.  

4.  The evidence of record does not show and she has not provided any evidence that shows she was ever treated for or diagnosed with a mental/ medical condition/disorder that permanently prevented her from performing her assigned duties, were unfitting, warranted referral to an MEB/PEB, or shows she should have been processed for a medical discharge.  

5.  Based on her overall record, her service did not meet the standards of acceptable conduct of duty for Army personnel.  Therefore, she is not entitled to an honorable discharge.





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)                                         AR20140016009



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ABCMR Record of Proceedings (cont)                                         AR20140016009



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