IN THE CASE OF:	   

		BOARD DATE:	  27 October 2015

		DOCKET NUMBER:  AR20150003555 


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 characterization of service.  

2.  The applicant states she served her country honorably for over 19 years and an upgrade to her characterization of service should be considered.  If her record were compared to the records of the peers in her unit and year group, the big discrepancies between the treatments of black and white Soldiers would be obvious.  Black Soldiers were treated unfairly and more harshly than white Soldiers.  She cannot prove her statement but the military records of Black Soldiers are proof of the inequalities.  She was not mentored or professionally developed, as evident in her Officer Evaluation Reports (OER).  She was denied the opportunity to transfer to another unit.  Her request is based upon the fact that she was improperly and inequitably discharged.  Furthermore, her general discharge negatively affects government employment, civilian employment, and most recently, her eligibility for veterans and educational benefits such as the Montgomery GI Bill (MGIB).

3.  The applicant provides a copy of her student identification (ID) card and a Department of Veterans Affairs (VA) denial of her claim for the MGIB, dated 
10 September 2014.

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.  Following prior service in the U.S. Air Force, the applicant was appointed on 15 August 1994 as a Reserve commissioned officer of the Army in the rank of second lieutenant (2LT).  She held area of concentration (AOC) 44A (Finance Officer) and attained the rank of captain (CPT).

3.  She entered active duty as an Active Guard Reserve (AGR) Soldier on 
21 February 1999.

4.  Her record contains a Memorandum of Reprimand, dated 20 May 2001, which shows she was reprimanded for her failure to comply with expected standards of professional officer conduct.  At the time of the reprimand, she was a first lieutenant (1LT) serving as a finance officer.  The reprimand states:

	a.  She knowingly submitted an erroneous travel voucher, had a subordinate approve a second travel voucher, and abused her position as an Alternate Agency Program Coordinator by using her individual government travel charge card for other than official purposes.  

	b.  When counseled and corrected about her deficiencies, she reacted in a defiant and disrespectful manner by disobeying Colonel (COL) HBD's direct orders.  She persisted to act in a similar manner by her continual refusal to perform her assigned duties.

	c.  Instead of accepting responsibility for her actions, she continued her course of action by failing to follow the published sick call policies for full time support Soldiers.  She was absent from her duty station without proper authority and obtained medical excuses in the attempt to obscure these actions.  These actions resulted in her being processed as absent without leave (AWOL), in which she concurred.

	d.  When confronted about all these actions, she filed complaints alleging sexual harassment and discrimination.  She knowingly submitted serious actions against a superior commissioned officers that were proven to be unfounded by the investigating officer.  This lack of integrity caused her chain of command to lose all confidence in her honesty, integrity, and moral judgement.

5.  She received a relief for cause OER for the rated period 16 August 2000 to 
11 June 2001.  This OER shows:

	a.  In Part IV (Performance Evaluation - Professionalism), a. (Army Values) she received "NO" block mark ratings for honor, integrity, respect, selfless-service, and duty.  

	b.  In Part IVb (Leader Attributes/Skills/Actions) she received "NO" block mark ratings for emotional, conceptual, interpersonal, communicating, decision making, executing, and building.

	c.  In Part V (Performance and Potential Evaluation (Rater)) she received an "Unsatisfactory Performance, Do Not Promote" block mark rating and her rater stated:  "This relief is directed by the rater.  [The applicant's] performance, behavior, adaptability and attitude took a downward turn during this rating period and continues to decline.  [The applicant] submitted an erroneous travel voucher in the attempt to gain additional funds for vicinity mileage.  [The applicant] abused her position as an Alternate Agency Program Coordinator by using her individual Government Travel Card for other than official purposes.  Despite repeated denials of requests, [the applicant] used false pretenses and deceit with higher headquarters in an attempt to circumvent her chain of command.  When counseled and corrected about these deficiencies, [the applicant] reacted in a defiant and disrespectful manner by disobeying direct orders.  Instead of accepting responsibility for her actions, [the applicant] continued on the path of self-destruction by being absent from her duty station without proper authority and obtained medical excuses in the attempt to obscure these actions.  These actions resulted in the processing of Absent Without Leave (AWOL) in which she concurred.  Frequent counseling has been unproductive.  Although given the opportunity to take responsibility for her actions, [the applicant] failed to do so.  She has no integrity or professional ethics.  This behavior indicates [the applicant] cannot be trusted to be a leader of America's Reserve Soldiers.  She has brought discredit upon herself, this command and the officer corps.  Her lack of integrity caused me to lose all confidence in her honesty, integrity and moral judgment.  [The applicant] should be removed from active and Reserve military service."

	d.  In Part VII (Senior Rater) she receive a "Do Not Promote" block mark rating and her senior rater stated:  "Concur with the rater concerning the relief for cause.  [The applicant's] conduct and performance have degenerated to an unacceptable level.  She failed to comply with accepted standards of professional officer conduct.  Her conduct was inexcusable under any circumstances and is a disgrace to the US Army Reserve (USAR) and the Army officer corps.  [The applicant] used deceit and false pretenses in her efforts to prove her arguments.  Formal counseling failed to correct her deficiencies.  [The applicant's] disrespectful attitude and behavior… [had a] negative… impact… on subordinate Soldiers in the section.  Her willful disobedience concerning all related performance objectives will continue to deteriorate the Pay Division unless she is removed from active duty and the USAR."

6.  Her record contains a General Officer Memorandum of Reprimand (GOMOR), dated 15 September 2005.  She was a captain (CPT) serving as a management analyst/liaison officer at the time of the reprimand.  The reprimand indicated there were two Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigations attached, dated 30 October 2004 and 10 March 2005; however, the investigations referenced in the GOMOR were not available for review in this case.  This GOMOR, issued by Brigadier General (BG) GJS, states/shows/provides:
	a.  A background of events as indicated by the Army Regulation 15-6 investigation, dated 30 October 2004 shows:

		(1)  On 31 March 2004, COL Hxxxxxx directed her to turn off a television set located in the G-8 common area.  She refused to turn off the television set, argued with COL Hxxxxxx, and turned the television set back on once COL Hxxxxxx had turned it off.  That day she also received an order, via telephone, from COL Ixxxxx to turn off the same television set.  COL Ixxxxx was part of her chain of command.  She refused to comply with the order given by COL Ixxxxx, challenged his order, and argued with COL Ixxxxx.  

		(2)  On 22 July 2004, BG GJS counseled her when he was serving as the acting commanding general of the 311th Theater Signal Command (TSC).  During that counseling, BG GJS gave her several orders.  Specifically, he ordered her to comply with the orders of your chain of command, namely Ms. Mxxxxx and COL Ixxxxx.  BG GJS also ordered her to cease all turbulent behavior.  Finally, he ordered that if she believed that any orders that she received from her chain of command were unlawful or otherwise improper, to make a formal report of them. 

		(3)  On 13 August 2004, the applicant was instructed by Ms. Mxxxxx and COL Cxx to check the status of a group travel order and to provide a packet of information to COL Cxx.  She was further instructed that she could not go on leave or depart that day until this work was completed.  The applicant acknowledged these instructions.  However, she did not complete this work and did depart on leave that day, contrary to the instructions given to her by Ms. Mxxxxx and COL Cxx. 

		(4)  When confronted, upon her return on 18 Aug 2004, with her failure to follow these instructions, she was rude and disrespectful to Ms. Mxxxxx.  The applicant's confrontation escalated to the point where Ms. Mxxxxx was so shaken that she had to leave work.  During this confrontation, the applicant told COL Cxx that he could not counsel her because he was not in her chain of command.  However, BG GJS had previously explained to her that COL Cxx was in her chain of command. 

		(5)  On 26 August 2004, Ms. Mxxxxx instructed the applicant to complete a return DD Form 1610 (Request and Authorization for TDY [Temporary Duty] Travel of DoD [Department of Defense] Personnel) for an upcoming exercise and to draft Major (MAJ) Sxxxxx's North Atlantic Treaty Organization (NATO) orders.  The applicant was further instructed that she could not go on pass until this work was completed.  The applicant then shouted at Ms. Mxxxxx and spoke to her in a disrespectful manner.  The applicant told Ms. Mxxxxx that she could not tell her what to do, and directed Ms. Mxxxxx to get out of her office.  The applicant then refused to speak to COL Ixxxxx on the telephone about the matter because she was "busy."  When the applicant eventually spoke to COL Ixxxxx on the telephone, he told her to follow Ms. Mxxxxx's instructions, and that Ms. Mxxxxx would have to approve the applicant's pass before she was authorized to go on pass.  The applicant left on pass that day without having Ms. Mxxxxx approve her pass, and without completing the required work. 

		(6)  On 1 September 2004, the applicant was relieved of her duties in the G-8 section.  Subsequently, she was ordered by COL Nxxxxxx, a superior commissioned officer, to remove her personal possessions from her office and from the headquarters of the 311th TSC.  To date, the applicant has failed to comply with COL Nxxxxxx's order. 

			(a)  The applicant's actions had a negative impact on the G-8 section, as well as on the HQ of the 311th TSC.  Her actions created a hostile and unpleasant work environment for her coworkers within G-8 and in the common office area.  The confrontations and conflicts between the applicant and Ms. Mxxxxx created a strained and hostile environment for other persons working in the area who were forced to witness these events.  The effect of the applicant's conduct on Ms. Mxxxxx, her immediate supervisor, were similarly adverse.  

			(b)  Second, the applicant's chain of command was forced to do extra work to accomplish actions that were assigned to her, but that she failed to complete.  For example, the unit's Management Control Program (MCP) was assigned to the applicant, and she was given training in how to perform these management control duties.  Despite this training, she never produced timely or correct MCP products, forcing her supervisors to step in to meet the requirements imposed by higher headquarters.  Additionally, her chain of command within the G-8 was forced to spend considerable time responding to her conduct, and the turbulence she created.

			(c)  Similar issues appeared in matters of pay and orders processing.  The applicant was unwilling to process pay or orders actions on behalf of some Soldiers, and this caused others in the unit to have to pick up the slack so that the affected Soldiers would be paid. 

			(d)  The impact of her actions was not solely limited to the G-8 section.  She set a poor example for the Soldiers by directly disobeying orders given to her by superior commissioned officers.  Like the G-8 leadership, the 311th's leadership was also forced to address her conduct. Many efforts, including counseling statements, were made to develop her.  However, the attempts to develop the applicant failed.  She was given many "second chances."  Even after matters had progressed to clear insubordination, BG GJS attempted to clean the slate and allow her to start over fresh.  The applicant did not take advantage of these opportunities. 

	b.  A background of events as indicated by the Army Regulation 15-6 investigation, dated 10 March 2005 shows:

		(1)  After the applicant was relieved of her duties in the G-8 section, COL Ixxxxx found a temporary job for her as the Officer in Charge (OIC) of the Combined Federal Campaign (CFC) on the main post of Fort George G. Meade, MD.  

		(2)  On 17 September 2004, COL Nxxxxxx, the Chief of Staff, issued a written memorandum, detailing the applicant as the CFC coordinator, and ordering her to report to Mr. RA, the Director of Plans, Training, Mobilization, and Security, Fort Meade, MD on Monday, 20 September 2004, at 0800.  That same day, COL Cxx personally called her on the telephone and told her to report to Mr. RA on Monday, 20 September 2004, for duty as the CFC coordinator.  She verbally acknowledged this order and asked COL Cxx if she could take leave.  COL Cxx told her that any leave would have to be coordinated with Mr. RA, her new supervisor.  COL Cxx did not approve her oral leave request.  

		(3)  On 20 September 2004, COL Cxx found a DA Form 31 (Request and Authority for Leave) bearing the applicant's signature on his desk.  In the leave form, she requested leave from 20-30 September 2004.  COL Cxx had no idea how the applicant's leave form got on his desk.  According to her leave form, the date of submission was 15 September 2004.  COL Cxx did not sign her request for leave and filed her leave form in a folder.  COL Cxx attempted to contact her without success.  He left a voicemail on the applicant's phone stating that he did not approve her leave and that she needed to contact Mr. RA to coordinate any leave.  

		(4)  On 20 September 2004, Mr. RA received two voicemails related to the applicant.  The first was from COL Cxx, who explained that the applicant would report to Mr. RA at 0800, 20 September 2004.  The second message was from the applicant stating she would be out of town on leave through 30 September 2004, and would report for duty on 1 October 2004.  Sometime during the following week, the applicant left another voicemail for Mr. RA stating that her leave had been extended and that she would not report to work on 1 October 2004.  Mr. RA did not give the applicant permission to take leave at any time.  CPT Jxxxx, who is the company commander for Headquarters Company, U.S. Army Garrison, Fort Meade, MD, filled in for the applicant, at Mr. RA's request, as the CFC coordinator until the applicant reported for duty.  

		(5)  On 21 September 2004, COL Cxx talked with Mr. RA for the first time and notified him that the applicant's leave had not been approved. 

		(6)  On 22 September 2004, COL Cxx made numerous attempts to contact the applicant without success. He left a message on the applicant's phone notifying her again that her leave had not been approved and that she was AWOL. 

		(7)  Sometime during the week beginning 27 September 2004, Mr. RA received a voicemail from the applicant wherein she stated her leave had been extended, and that you would not report for duty on 1 October 2004.  

		(8)  On 4 October 2004, the applicant reported to Mr. RA's office and met Mr. CS.  Mr. CS informed her that Mr. RA was not in that day.  Mr. CS directed her to Mr. Mxxxxxxx's office to begin her duties

	c.  In summary, the applicant's actions reflect an on-going pattern of conflict, disobedience, defiance, disrespect, insubordination, and a lack of integrity in violation of Articles 86 [Failure to go to appointed place of duty], 89 [Disrespect to a superior commissioned officer], 90 [Assaulting or willfully disobeying a superior commissioned officer], and 107 [False official statements] of the Uniform Code of Military Justice (UCMJ).  Further, she failed to properly discharge assignments commensurate with her grade and experience; displayed apathy and inappropriate attitudes, including inability or unwillingness to expend effort; intentionally neglected or failed to perform assigned duties; and engaged in conduct unbecoming of an officer.

	d.  The portion of this GOMOR entitled "Reprimand" stated she was being reprimanded and admonished for her egregious misconduct and gross breach of the special trust and confidence accorded to her as a Commissioned Officer.  Her ongoing pattern of conflict, disobedience, defiance, disrespect, and insubordination was far below the standards required of a Commissioned Officer in the United States Army Reserve.  Moreover, her level of personal discipline, self-control, and integrity was far below the ethical standards required of all Soldiers in the United States Army Reserve.  She was informed that this type of behavior would not be tolerated by any person in her Command.  As a Commissioned Officer, she was expected to set and observe the highest standards of personal conduct and uphold the Army values at all times.  She committed misconduct that violated UCMJ Articles 86, 89, 90, and 107.  Her behavior demonstrated her inability to continue service, and warranted her separation from the United States Army Reserve.

7.  She received an extended annual OER for the rated period 15 September 2004 to 9 February 2006.  This OER shows:

	a.  In Part V (Performance and Potential Evaluation (Rater)) she received a "Satisfactory Performance, Promote" block mark rating and her rater made positive comments about her performance.

	b.  In Part VII (Senior Rater) she received a "Fully Qualified" block mark rating and her senior rater made positive comments about her performance and indicated that the applicant refused to sign her OER.  

8.  The complete facts and circumstances surrounding her discharge action are not available for review with this case.  However, her record contains a DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows she was discharged on 27 February 2007, under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 4-2b, by reason of unacceptable behavior, and she received an under honorable conditions (general) characterization of service.  

9.  The applicant applied to the Army Discharge Review Board (ADRB) to request an upgrade of her discharge.  On 4 February 2008, the ADRB denied her requested relief and stated she was properly and equitably discharged.

10.  Army Regulation 600-8-24, chapter 4 (Eliminations) prescribes the tasks, rules, and steps for eliminating officers in the Active Army for substandard performance of duty, misconduct, moral or professional dereliction, and in the interests of national security.  An officer is permitted to serve in the Army because of the special trust and confidence the President and the nation have placed in the officer’s patriotism, valor, fidelity, and competence.  An officer is expected to display responsibility commensurate to this special trust and confidence and to act with the highest integrity at all times.  However, an officer who will not or cannot maintain those standards will be separated.  Every officer deserves a fair chance to demonstrate their capabilities.  When an officer shows ineffective tendencies (especially if the officer is inexperienced) when practicable, they will be given another chance under another commander.  The officer’s ineffectiveness will be systematically recorded in documents that specify each period covered, duties observed, and defects noted.  Recommendations for elimination action will not be based on generalities and vague impressions.  It is necessary to document, in writing, the precise reasons an officer is considered ineffective.  

	a.  Paragraph 4-2b states, while not all inclusive, when one of the following or similar conditions exist, elimination action may be or will be initiated: misconduct, moral or professional dereliction, or in the interests of national security; discreditable or intentional failure to meet personal financial obligations; mismanagement of personal affairs that are unfavorably affecting an officer’s performance of duty; mismanagement of personal affairs to the discredit of the Army; intentional omission or misstatement of fact in official statements or records for the purpose of misrepresentation; acts of personal misconduct (including but not limited to acts committed while in a drunken or drug intoxicated state); intentional neglect of or failure to perform duties; conduct unbecoming an officer; conduct or actions that result in the loss of a professional status, such as withdrawal, suspension of professional license or certification connected to or necessary for the performance of military duties; and the final denial or revocation of an officer’s Secret security clearance.  Derogatory information based on the following or similar reasons, require an officer’s record to be reviewed for consideration of terminating appointment.  Standing alone, one of these conditions may not support elimination, however, this derogatory information combined with other known deficiencies form a pattern that, when reviewed in conjunction with the officer’s overall record, requires elimination.  These types of derogatory information include:  punishment under UCMJ, article 15; conviction by court-martial; the final denial or revocation of an officer’s Secret security clearance by appropriate authorities; a relief for cause OER; adverse information filed in the OMPF; and failure of a course at a service school.

	b.  Paragraph 1–22a. states an officer will normally receive an honorable characterization of service when the quality of the officer’s service has met the standards of acceptable conduct and performance of duty, or the final revocation of an officer's security clearance is for reasons that do not involve acts of misconduct.  Additionally, when the separation is based solely on preservice activities, substandard performance of duty, or final revocation of a security clearance for reasons that do not involve acts of misconduct, the characterization of service will be Honorable.

	c.  Paragraph 1–22b. states an officer will normally receive an Under Honorable Conditions characterization of service when the officer’s military record is satisfactory but not sufficiently meritorious to warrant an Honorable discharge.  A separation under honorable conditions will normally be appropriate when an officer:  submits an unqualified resignation or a request for release from active duty under circumstances involving misconduct; is separated based on misconduct, including misconduct for which punishment was imposed, which renders the officer unsuitable for further service, unless an Under Other Than Honorable Conditions separation is appropriate; is discharged for physical disability resulting from intentional misconduct or willful neglect, or which was incurred during a period of unauthorized absence; or is discharged for the final revocation of a security clearance as a result of an act or acts of misconduct, including misconduct for which punishment was imposed, unless a discharge Under Other Than Honorable Conditions is appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her character of service should be upgrade to honorable to make her eligible for VA benefits such as the MGIB.  

2.  Her record is void of the complete facts and circumstances that led to her discharge; however, her record does contain a relief for cause OER, a MOR, a GOMOR, and a DD Form 214 that show she was discharged for unacceptable behavior on 27 February 2007, under the provisions of Army Regulation         600-8-24, paragraph 4-2b, and she received an under honorable conditions (general) characterization of service.  

3.  It is presumed that all requirements of law and regulation were met and her rights were fully protected throughout the separation process.  She provided no evidence that would indicate the contrary, nor has she provided any evidence to show that racial prejudice had anything to do with her discharge.  Further, it is presumed her discharge accurately reflects her overall record of service.  Absent evidence to the contrary, regularity must be presumed in this case.

4.  The evidence of record shows she had an on-going pattern of conflict, disobedience, defiance, disrespect, insubordination, and that she violated several Articles of the UCMJ in her failure to go to appointed place of duty, disrespect towards, superior commissioned officer, willfully disobeying superior commissioned officers, and making false official statements.  She also wrongfully used her government charge card.  Additionally, she failed to properly discharge  assignments commensurate with her grade and experience; displayed apathy and inappropriate attitudes, including inability or unwillingness to expend effort; intentionally neglected or failed to perform assigned duties; and engaged in conduct unbecoming of an officer.  This misconduct rendered her service unsatisfactory and does not meet the criteria for an honorable characterization of service as defined by Army Regulation 600-8-24, paragraph 1-22a.  

5.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or other benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her 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)                                         AR20150003555





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ABCMR Record of Proceedings (cont)                                         AR20150003555



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