IN THE CASE OF:	  

		BOARD DATE:	  3 February 2015

		DOCKET NUMBER:  AR20140007381 


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 (GD) be upgraded to an honorable discharge (HD).

2.  The applicant states:

   a.  prior to her discharge, she was dealing with unwanted sexual advances and racism from her first sergeant (1SG);
   
   b.  although she also contributed to her discharge by some of her actions, had the chain of command taken her complaints against the 1SG seriously and assisted her the outcome would have been different;
   
   c.  however, she was young, immature, and acted out because she could not get the help she needed; and
   
   d.  while she is not proud of what happened to her, she feels the military and the lessons she learned from the situation has made her a better person.
   
3.  The applicant provides:

* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* Department of Veterans Affairs (VA) letter with two attachments
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DeVry University Transcript of Academic Record
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 10 February 1988.  She was trained in and awarded military occupational specialty 76V (Materiel Storage and Handling Specialist).

3.  Her official military personnel file (OMPF) includes eight DA Forms 4856-R (General Counseling Form) dated between 1 August 1988 and 29 May 1989, which show she received formal counseling for the following infractions:

* missing cleanup
* writing dishonored checks (suspension of check cashing privileges)
* failing to perform her detail as directed
* twice failing to show-up to medical appointments
* failing to report to guard mount formation
* failure to repair
* continued letters of indebtedness and bad check writing
* violating battalion and company policy letters
* disobeying a lawful order
* lying about violating visitation policy
* lack of self-discipline, motivation, and self-pride

4.  The applicant twice accepted non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice as indicated:

* 28 August 1988, for disobeying a lawful order by wrongfully having a male in her room after visiting hours on 7 August 1988
* 26 January 1989, for being absent from her appointed place of duty on 19 January 1989

5.  On 25 May 1989, the applicant underwent a mental status evaluation and the results showed she demonstrated:

* passive behavior 
* she was fully alert and oriented
* a depressed mood or affect
* a clear thinking process
* a normal thought content
* good memory
* she had the mental capacity to understand and participate in separation proceedings

6.  Based on the applicant's mental status evaluation, the attending psychiatrist also indicated:

   a.  The applicant was diagnosed with having a mixed personality disorder with histrionic, dependent, passive-aggressive, and antisocial features, severe.
   
   b.  The applicant's condition was a deeply ingrained, maladapted pattern of behavior of long duration that interfered with her ability to perform duty.  The disorder was so severe that her ability to function effectively in the military environment was significantly impaired.  Discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-13 was recommended.
   
   c.  The applicant was psychiatrically cleared for any administrative action deemed appropriate by the command.

7.  On 26 July 1989, the applicant’s commander informed her of his intent to separate her under the provisions of Army Regulation 635-200, chapter 14, for pattern of misconduct.  The commander cited the applicant's many negative counseling statements and three NJP records as the basis for his recommendation.  (The applicant's OMPF only documents two records of NJP.)  The commander also informed the applicant of her right to consult with legal counsel, to obtain copies of documents pertaining to the separation action, to request a hearing before an administrative board (if accrued 6 or more years of active or Reserve service), to be represented by either or both military and civilian counsel, to waive her rights, and/or to submit a request for a conditional waiver of any rights.

8.  On 11 August 1989, the applicant completed her election of rights by requesting representation by counsel.  She declined to submit any statements in her own behalf.
9.  On 31 August 1989, the separation authority approved the applicant's separation action under the provisions of Army Regulation 635-200, paragraph 14-12a, with issuance of a GD.

10.  On 22 August 1989, the separation authority approved the findings and recommendation to discharge the applicant from the Army under the provisions of Army Regulation 635-200, chapter 14 with a GD.  On 10 October 1989, the applicant was discharged accordingly.

11.  The DD Form 214 issued to the applicant shows she was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of pattern of misconduct.  It also shows she completed 1 year, 8 months, and 1 day of creditable active service and that she held the rank/grade of private first class/E-3 at the time of her discharge.

12.  On 13 April 1998, the Army Discharge Review Board determined that the applicant's discharge was both proper and equitable and denied relief.

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, commission of a serious offense that could result in a punitive discharge, convictions by civil authorities, desertion or absence without leave.  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 (UOTHC) is normally appropriate.

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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that her GD should be upgraded to an HD based on the unwanted sexual advances and racism she received by her 1SG was carefully considered.  However, there is no evidence of record and she failed to submit any evidence to corroborate her claim.

2.  The evidence of record confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  Her overall record of service was considered and resulted in the issuance of a GD instead of the UOTHC discharge that is normally appropriate for members separated for misconduct.  The applicant's disciplinary history clearly diminished the overall quality of her service below that meriting a fully honorable discharge.  Accordingly, there is no basis upon which to grant 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)                                         AR20140007381





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ABCMR Record of Proceedings (cont)                                         AR20140007381



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