BOARD DATE:	  20 August 2015

		DOCKET NUMBER:  AR20150000791 


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 his general, under honorable conditions discharge.

2.  The applicant states that she believes a discharge based on homosexuality was discussed, but instead she was discharged for misconduct.

   a.  She states that she feels she was often singled out for being homosexual.  She acknowledges that she received written counseling on numerous occasions; however, she was trying to do what was right and provided valid reasons for her actions.  She adds that her chain of command refused to hear her cries for help when she was bullied.

   b.  She acknowledges having received nonjudicial punishment (NJP) at one point for an incident that occurred after duty hours.  She explains that she attended a Basic Skills Education Program class rather than go on bedrest after having had a wisdom tooth extracted.  She adds she was trying to better herself.

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 had prior honorable enlisted service in the Army National Guard (ARNG) of the United States and New York ARNG from 6 December 1986 through 25 January 1988.  She was awarded:

* the New York Military Commendation Medal for her performance on
18 December 1986
* military occupational specialty 76P (Materiel Control and Accounting Specialist)

3.  She enlisted in the Regular Army (RA) on 26 January 1988 for a period of 
4 years.  She was assigned to the 4th Materiel Management Center (MMC), Fort Hood, TX, and promoted to specialist (E-4) on 1 January 1990.

4.  A review of the applicant's military personnel record shows that during the period 14 March 1988 through 27 August 1990, she was formally counseled on 26 occasions for:

* failing to report to her place of duty (14 occasions)
* failing to pay just debts (3 occasions)
* being intoxicated (3 occasions)
* monthly duty performance (2 occasions)
* bar to reenlistment
* speeding while driving on post and having no insurance
* failing to obey instructions to return a video to the chapel
* after-duty hours employment
* the separation process

5.  A thorough review of the counselling statements failed to reveal any references to an admission of homosexuality, homosexual conduct, or bullying.

6.  The applicant accepted NJP on three occasions for violations of the Uniform Code of Military Justice (UCMJ):

* Article 92, for failing to obey a lawful order (violating quarters on 26 and
27 April 1988)
* Article 86 (three specifications), for failing to go to her appointed place of duty (morning formation) on 28 July, 29 July, and 12 August 1988
* Article 86 (three specifications), for failing to go to her appointed place of duty on 4 May 1990 (work call formation), and on 7 and 14 May 1990 (physical training (PT) formation); her punishment was reduction to grade E-3, 14 days of extra duty, and forfeiture of $224.00 (suspended, to be automatically remitted if not vacated before 29 November 1990)

7.  On 20 July 1990, the applicant failed to go to her appointed place of duty
(PT formation).  The applicant's commander vacated the suspension of the punishment of forfeiture of $224.00.

8.  On 27 September 1990, the applicant's commander notified her that he was recommending her for separation under the provisions of Army Regulation 
635-200 (Personnel Separations – Enlisted Personnel), chapter 14 (Separation for Misconduct), paragraph 14-12b, based on a pattern of misconduct.  The reasons for his proposed action were the applicant's receipt of NJP on three occasions and counseling on numerous occasions for her duty performance, missing formation, failing to be at her appointed place, and failure to pay just debts.

   a.  The applicant was advised of her rights and the separation procedures involved.  The commander also informed her that he was recommending a general, under honorable conditions characterization of service.

	b.  The applicant acknowledged receipt of the commander's notification and that she had been advised of her right to consult with counsel.

9.  Following notification of the separation action, the applicant consulted with legal counsel and she was advised of the rights available to her.

   a.  She was advised she may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions discharge was issued to her.

   b.  The applicant also acknowledged she understood that if she received a discharge/character of service that is less than honorable conditions she may apply to the Army Discharge Review Board (ADRB) or ABCMR for upgrading her discharge.  However, an act of consideration by either board did not imply that her discharge would be upgraded.

	c.  She elected not to submit statements in her own behalf.
	
   d.  The applicant and her counsel placed their signatures on the document on 2 October 1990.
10.  Her chain of command recommended approval of the applicant's separation with a general, under honorable conditions discharge.

11.  The separation authority approved the recommendation for discharge of the applicant and directed issuance of a General Discharge Certificate.

12.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she entered active duty this period on 26 January 1988 and she was discharged on 29 October 1990 under the provisions of Army Regulation 635-200, paragraph 14-12b, with service characterized as under honorable conditions (general).  She had completed 3 years, 9 months, and 
2 days of net active service this period.

13.  A review of her military personnel records failed to reveal any evidence that she applied to the ADRB for review of her discharge within its 15-year statute of limitations.

14.  In support of her request the applicant provides the following evidence that has not been previously summarized and/or considered.

   a.  DA Form 87 (Certificate of Training) that shows she completed the
13th Support Command (Corps), MMC Supply Course at Fort Hood, TX, on 
9 September 1988.

   b.  DA Form 3647 (Inpatient Treatment Record Cover Sheet) that shows the applicant was admitted to Darnall Army Community Hospital, Fort Hood, TX, on 14 December 1988 and discharged on 21 December 1988.  She was diagnosed with Axis I:  Adjustment Disorder with Depressed Mood and Alcohol Abuse.

   c.  DA Form 87 that shows she completed the III Mobile Armored Corps, Combat Stress Control Component at the Department of Psychiatry, Fort Hood, TX, on 21 February 1989.

   d.  U.S. Army Medical Department Activity, Fort Hood, TX, memorandum, dated 8 March 1989, that shows the Division Psychiatrist evaluated the applicant through clinical interview and psychometrics, and he diagnosed her with Axis I:  Alcohol Abuse, in remission.  He reported that there was no evidence the applicant was suffering from a thought or affective disorder.  He noted, "In the absence of psychotic symptoms, and following the current III Corps administrative law guidelines, [the applicant] is regarded as being 'mentally sound' [psychiatrist's emphasis] at the time of the incident in question."

15.  Army Regulation 635-200, in effect at the time, 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, commission of a serious offense, conviction by civil authorities, desertion, or absences 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 is normally considered appropriate.  However, the separation authority may direct a general discharge if such is merited by the member's overall record.
	
   b.  Chapter 3, 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 applicant contends her discharge should be upgraded to fully honorable because she was trying to do what was right and her chain of command refused to hear her cries for help.

2.  The evidence of record shows the applicant was admitted to Darnall Army Community Hospital on 14 December 1988 and discharged on 21 December 1988.  She was diagnosed with Axis I:  Adjustment Disorder with Depressed Mood and Alcohol Abuse.

   a.  She completed the III Mobile Armored Corps, Combat Stress Control Component at the Department of Psychiatry on 21 February 1989.

   b.  On 8 March 1989, the Division Psychiatrist diagnosed her with Axis I:  Alcohol Abuse, in remission.  He reported that there was no evidence the applicant suffered from a thought or affective disorder.  Moreover, he found the applicant to be "mentally sound."

   c.  Thus, the evidence of record does not support the applicant's contention that her verbal expressions or behavior indicating the need for help were ignored.

3.  The applicant's administrative discharge under the provisions of Army Regulation 635-200, chapter 14, based on a pattern of misconduct was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized her rights.  In addition, the reason for and type of discharge directed were appropriate and equitable.

4.  The evidence of record shows the applicant's pattern of misconduct began in March 1988 less than 2 months after her enlistment in the RA.  Over the course of the next 31 months she was formally counseled on numerous occasions for failing to be at her appointed place of duty, failing to pay just debts, and being intoxicated.  In addition, she received NJP on three occasions, she was reduced to grade E-3, and subsequently forfeited $224.00 as a result of her misconduct during the period that her punishment was suspended.  In addition, she failed to complete her 4-year active duty obligation.  Thus, the applicant's service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.

5.  Therefore, there is an insufficient basis for granting 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)                                         AR20150000791



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ABCMR Record of Proceedings (cont)                                         AR20150000791



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