IN THE CASE OF: BOARD DATE: 20 September 2016 DOCKET NUMBER: AR20150006849 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 20 September 2016 DOCKET NUMBER: AR20150006849 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. IN THE CASE OF: BOARD DATE: 20 September 2016 DOCKET NUMBER: AR20150006849 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 character of service from under honorable conditions (general) to honorable. 2. The applicant defers to counsel to provide a statement and additional requests. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel (a Veterans' Service Officer (VSO)) requests an upgrade of the applicant's character of service from under honorable conditions (general) to honorable, and a. the upgrade of her characterization of service be accomplished in accordance with Army Regulation Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 4-5 (Characterization of service); b. correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty) in item 27 (Reentry (RE) Code) to change her RE code from RE-4 to a code commensurate with someone who met their expiration term of service (ETS) and received an honorable characterization of service; and c. correction of her DD Form 214 in item 18 (Remarks) to add the statement, "MEMBER HAS COMPLETED FIRST FULL TERM OF SERVICE." 2. The VSO directs the Board's attention to Army Discharge Review Board (ADRB) Docket Number AR20110006497, which shows the ADRB upgraded the discharge of an applicant who was separated from military service under the provisions of Army Regulation 635-200, chapter 14 (Misconduct). The ADRB upgraded the applicant's character of service from under honorable conditions (general) to honorable in accordance with Army Regulation 635-200, paragraph 4-5, but determined that the reason for separation was valid. a. The VSO states that the ABCMR should upgrade the applicant's discharge in accordance with Army Regulation 635-200, paragraph 4-5, to maintain consistency with prior Board rulings. Army Regulation 635-200, paragraph 4-5, states that a "Soldier being separated upon expiration of enlistment or fulfillment of service obligation will be awarded characterization of service of honorable, unless the Soldier is in entry-level status and service is uncharacterized." b. The applicant enlisted for 4 years on 3 February 2006 and was discharged on 2 February 2010. As such, she was erroneously given an under honorable conditions (general) characterization based on an Army Regulation 635-200, paragraph 14-12b. c. The VSO asks the Board to review ADRB Docket Number AR2003095871. This was a case where the ADRB approved a discharge upgrade under similar circumstances; the Soldier in this case had an identical situation at the time of discharge. In light of the recognition that the applicant's separation authority applied an inappropriate separation authority to discharge the applicant, all prior arguments made by the Board against upgrading the applicant's discharge are moot. 3. Counsel provides: * Letter from the State of Illinois, Department of Veterans' Affairs (VA), dated 27 February 2014 * State of Illinois VA claim form, dated 28 February 2014 * Letter from the Army Review Boards Agency, dated 13 March 2014 * Excerpt from ADRB Docket Number AR2003095871, dated 12 May 2004 * Excerpt from Army Regulation 635-200, dated 6 June 2005 * DD Form 214, for the period ending on 2 February 2010 * ADRB Docket Number AR20110006479, dated 7 December 2011 (pertaining to the applicant) * Letter from the ADRB, dated 10 January 2012 * Letter from the Army Review Boards Agency, dated 13 March 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. The applicant's DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States) shows she enlisted in the Regular Army on 3 February 2006 for a period of 4 years. Her enlistment contract required her to complete an 8 year Military Service Obligation (MSO). 3. She received negative counseling on three occasions between 1 August 2006 and 20 October 2006 for misplacing her identification card, failing to report to the morning accountability formation, and leaving the physical training (PT) formation without permission and returning to the barracks. 4. On 20 October 2006, she accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for throwing a beer bottle at a fellow Soldier and wrongfully using reproachful gestures (pouring a beer on a fellow Soldier). 5. On 4 December 2006, she received negative counseling stating that her company commander issued a no contact order, which informed her she was not permitted to make any form of contact with the Soldier referred to in the 20 October 2006 NJP. 6. Her record contains a sworn statement from a sergeant (SGT), dated 4 January 2007, wherein the SGT states he was walking to the gymnasium with three other SGTs when he noticed the applicant. She was wearing the winter PT uniform with her shirt untucked and she was walking and talking on her cell phone. The SGT yelled out, "Excuse me, Soldier," but she ignored him and continued walking and talking on her cell phone. He called out to her again, and she turned around; he asked for her name and rank. She was uncooperative and informed him she did not have to tell him anything. The SGT asked her to tuck in her shirt and came back later to make sure she complied. He addressed the applicant again and she ignored him. The SGT asked her why she felt she could ignore him and she said, "I don't know who the [expletive] you are." He then showed her his identification card, and informed her he was a SGT. She then told him to "get the [expletive] away from me" and resumed walking and talking on her phone. He asked for the name of her supervisor and she responded with more expletives. 7. She received negative counseling on three occasions between 10 March 2008 and 10 May 2008 for the following infractions: a. She was out of uniform and displayed a lack of discipline and tact. A lieutenant colonel (LTC) in a PT uniform approached the applicant while she was on her cell phone and asked her where she was supposed to be at that time. The LTC noted the applicant was out of uniform and told her to go get her jacket and headgear and report to her in the proper uniform. The applicant failed to report back as ordered. b. She was insubordinate in conduct toward her first sergeant (1SG). She interrupted her 1SG in the middle of his conversation in a disrespectful manner, failed to stand at the position of parade rest while addressing the 1SG, and instead addressed him while lounging in her chair. When reminded to stand at the position of parade rest, she sighed and rolled her eyes before standing up to address the 1SG and continued to speak to and question him in a disrespectful manner. c. She disobeyed an order from a noncommissioned officer (NCO) and was insubordinate in conduct toward a noncommissioned officer (NCO). 8. On 5 June 2008, the applicant accepted NJP under the provisions of Article 15, UCMJ, for being disrespectful in deportment to her 1SG by interrupting his conversation, failing to stand at the position of parade rest while speaking to him, and sighing and rolling her eyes. 9. On 10 July 2009, she received negative counseling for being disrespectful to an NCO. 10. Her record contains a DA Form 31 (Request and Authority for Leave), dated 30 July 2009. This form shows her company commander approved her request to take leave from 31 July 2009 to 6 August 2009, but the applicant did not return to her unit until 10 August 2009. 11. Her record contains two DA Forms 4187 (Personnel Action) showing her duty status as absent without leave (AWOL) from 7 August 2009 to 9 August 2009 because she failed to return from leave at the proper time. 12. On 10 August 2009, she received two negative counseling statements. The first counseling was for being AWOL from 7 August 2009 to on or about 10 August 2009. The second counseling was for disobeying the order of an NCO to sign in at the staff duty desk upon returning from leave. 13. Her record contains a DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)) showing her commander initiated a non-transferable flag for adverse action (flag code A) on 10 August 2009. 14. On 25 August 2009, she received negative counseling for being late to an accountability formation. 15. On 27 August 2009, she accepted NJP under the provisions of Article 15, UCMJ, for failing to sign in from leave on 7 August 2009; submitting a marriage certificate for approval of a claim against the government to move out of the single Soldier barracks, which claim was fraudulent and known by the applicant to be fraudulent between on or about 11 September 2009 and 6 October 2009; and for marrying another Soldier who was already married on or about 11 September 2009. 16. She received negative counseling on two occasions between 28 October 2009 and 24 November 2009 for the following infractions: a. She was informed that her commander reviewed an investigation packet regarding bigamy allegations between the applicant and another Soldier. This counseling also informed her that, effective immediately, she was reduced in rank from specialist (SPC)/E-4 to private first class (PFC)/E-3. b. Her commander informed her that he was contemplating separation proceedings under Army Regulation 635-200, paragraph 14-12b (Pattern of misconduct). 17. Her record contains a DD Form 2808 (Report of Medical Examination) and a DD Form 2807-1 (Report of Medical history), which show she had a separation physical on 4 December 2009. These forms indicate she was 8 weeks pregnant and medically qualified for military service. 18. Her record contains a report of mental status evaluation, dated 18 December 2009. This form shows a psychologist examined the applicant because the applicant's command was considering initiating separation proceedings in accordance with Army Regulation 635-200, paragraph 14-12b. The psychologist noted: a. Her behavior was normal, she was fully alert and oriented, her mood or affect was unremarkable, her thinking process was clear, her thought content was normal, and her memory was good. b. The applicant had the mental capacity to understand and participate in the proceedings and she was mentally responsible. c. The applicant did not suffer from a psychiatric disease or a defect or personality disorder that would cause significant defects in judgement, responsibility, or reliability. There was also no evidence of a mental defect, an emotional illness, or a psychiatric disorder of sufficient severity to warrant disposition through medical channels. d. The applicant was psychiatrically cleared for any administrative action deemed appropriate by her command. 19. Her record contains an Enlisted Record Brief (ERB), dated 4 January 2010. This form contains flag transaction codes "A," which stands for adverse action and "B," which stands for elimination—field initiated. The flag start was listed as 25 November 2009. 20. In January 2010, her commander informed her he was initiating action to separate her under the provision of Army Regulation 635-200, paragraph 14-12b. for a pattern of misconduct. He stated his reason for the proposed separation action was because she was derelict in the performance of her duties, she was disrespectful to an NCO on diverse occasions, she assaulted another Soldier, and she used reproachful gestures toward another Soldier. He informed her he was recommending she receive an under honorable conditions (general) character of service, and that his recommendation and her reply would be forwarded to the brigade commander, who was the separation authority and would make the final decision. a. He informed her that the intermediate commanders and the separation authority were not bound by his recommendation as to the character of service and could direct she receive an honorable characterization, a general characterization, or an uncharacterized characterization if she was in an entry level status. b. The notification advised her of her rights, which included the right to consult with counsel, the right to submit a statement in her own behalf, and the right to waive her rights. 21. On 8 January 2010, the applicant acknowledged her receipt of notice from her commander and that this notification informed her of the basis of the contemplated separation action under the provisions of Army Regulation 635-200, paragraph 14-12b. She acknowledged she received counseling on the rights available to her and of her right to consult with counsel prior to submitting her election of rights. 22. On 22 January 2010, the applicant consulted with legal counsel. Counsel advised her of the basis of the contemplated action to separate her for patterns of misconduct under the provisions of Army Regulation 635-200, paragraph 14-12b. and its effects, the rights available to her, and the effect of a waiver of her rights. a. The applicant indicated she would submit a statement in her own behalf no later than 29 January 2010. She also requested consulting counsel and representation by military counsel. Her separation packet did not contain a statement. b. She acknowledged understanding that she could expect to encounter substantial prejudice in civilian life if a she received general discharge under honorable conditions, she might be ineligible for many or all benefits as a veteran under both Federal and State laws, and she could expect to encounter substantial prejudice in civilian life. 23. On 22 January 2010, the applicant's military counsel requested that her chain of command terminate the separation action on the basis that her infractions were relatively minor. He asked the chain to command to consider her high Army Physical Fitness Test score, which was one of the highest in the brigade, and the fact that she participated in the Better Opportunities for Single Soldiers program. 24. Her commander formally recommended her separation under the provisions of Army Regulation 635-200, paragraph 14-12b. Her commander stated he was recommending her separation because she was derelict in the performance of her duties, she was disrespectful to an NCO on diverse occasions, she assaulted another Soldier, and she used reproachful gestures toward another Soldier. He also indicated that separation was the most appropriate course of action because applicant demonstrated, through repeated misconduct, that her separation was in the best interest of the Army, and he felt other means of disposition would fail to turn her into a quality Soldier. The intermediate commander concurred with her commander's recommendation. 25. Her record contains a memorandum issued by the Office of the Staff Judge Advocate, Trial Counsel, who stated he reviewed the administrative separation action pertaining to the applicant under the provisions of Army Regulation 635-200, paragraph 14-12b., and determined that it was legally sufficient. 26. The separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 14-12b., directed her discharge occur before her ETS date, that she receive RE Code 4 on her DD Form 214, and the issuance of a General Discharge Certificate. The separation authority also indicated that, in accordance with Army Regulation 635-200, paragraph 1-35(8)(i), the applicant was ineligible for transfer to the Individual Ready Reserve (IRR). The applicant was discharged accordingly on 2 February 2010. 27. Her DD Form 214 shows she received an under honorable conditions (general) discharge by reason of "pattern of misconduct," a separation code of "JKA," and an RE code of "4." This form also shows in: a. item 12c (Net Active Service this Period) – she completed 4 years, 0 months, and 0 days of active duty service. b. item 18 – the entry "MEMBER HAS NOT COMPLETED FIRST FULL TERM OF SERVICE." 28. On 11 June 2014, the ADRB, after careful consideration of her military records and all other available evidence, determined she was properly and equitably discharged and denied her request for an upgrade of her character of service. REFERENCES: 1. Title 10, U.S. Code, Section 972 (Members: effect of time lost) states enlisted members are required to make up time lost. An enlisted member of an armed force who is absent from his organization, station, or duty for more than one day without proper authority, as determined by competent authority (AWOL) is liable, after his return to full duty, to serve for a period that, when added to the period that he served before his absence from duty, amounts to the term for which he was enlisted. 2. Army Regulation 600-8-2 (FLAG) prescribes policies, operating tasks, and steps governing the suspension of favorable personnel actions as a function. a. Paragraph 1-12 states the specific actions and investigations listed below require a non-transferable flag. (1) Paragraph 1-12a addresses non-transferable flags for adverse actions and lists "AWOL" among the reasons a Soldiers command would initiate a non-transferable flag for adverse actions. (2) Paragraph 1-12b states non-transferrable flags are also initiated for Elimination—field initiated b. Table 3-1 that flag transaction code "A" stands for adverse action in accordance with paragraph 1–12a of this regulation and flag transaction code "B" stands for elimination—field initiated. 3. Army Regulation 635-200 sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. a. Chapter 3, section II (Type of Characterization or Description) states the following types of characterization of service or description of service are authorized: separation with characterization of service as Honorable, General (under honorable conditions), or Under Other Than Honorable Conditions, and Uncharacterized (for entry level status) are authorized. These separation types will be used in appropriate circumstances unless limited by the reason for separation. (1) Paragraph 3-7a states an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier'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. (2) Paragraph 3-7b states 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. b. Chapter 4 (Separation for Expiration of Service Obligation) states a Soldier will be separated upon expiration of enlistment or fulfillment of service obligation. (1) Paragraph 4-2 states, subject to chapter 1, section V, a Soldier enlisted or ordered to active duty normally will be discharged or released from AD on the date he/she completes the period for which enlisted or ordered to active duty. (2) Paragraph 4-5 states a Soldier being separated upon expiration of enlistment or fulfillment of service obligation will be awarded a character of service of honorable, unless the Soldier is in entry-level status and service is uncharacterized. c. Chapter 14 (Separation for Misconduct) establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. (1) Paragraph 14-3 states 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. (2) Section III (Acts or Patterns of Misconduct), paragraph 14-12b, states Soldiers are subject to action per this section for a pattern of misconduct. A pattern of misconduct consisting of one of discreditable involvement with civil or military authorities and discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the UCMJ, Army regulations, the civil law, and time-honored customs and traditions of the Army. 4. Army Regulation 635-5-1 (SPD Codes), Table 2-3 (Involuntary Discharge), states that the SPD code "JKA" is used to indicate the narrative reason for separation, " Pattern of Misconduct" under the provisions of Army Regulation 635-200, paragraph 14-12b. 5. The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers. This cross reference table shows the SPD code and a corresponding RE code. The table in effect at the time of her discharge shows the SPD code of "JKA" has a corresponding RE code of "3." 6. Army Regulation 635-5 (Separation Documents), paragraph 2-4h provides detailed instructions and source document(s) for completing each block of the DD Form 214. This paragraph states that item 18 of the DD Form 214 is used for Headquarters, Department of the Army, mandatory requirements when a separate block is not available, including the mandatory entry "SOLDIER (HAS) (HAS NOT) COMPLETED FIRST FULL TERM OF SERVICE." Routinely, a Soldier should not be considered to have completed the first full term of active service if separation occurs before the end of the initial contracted period of service. However, if a Soldier reenlists before the completion of that period of service, the first term of service is effectively redefined by virtue of the reenlistment contract. To determine if an enlisted Soldier has completed the first full term of enlistment, refer to the enlistment/reenlistment documents and compare the term(s) of enlistment to the net service in block 12c of the DD Form 214. If Soldier has completed or exceeded the initial enlistment, enter "has." If item 12c of the DD Form 214 is less than the Soldier's initial enlistment, enter "has not." DISCUSSION: 1. The applicant enlisted in the Regular Army on 3 February 2006; her contract required her to complete exactly 4 years of active duty service in the Regular Army. On the date of her enlistment, her ETS date was 2 February 2010. 2. The evidence of record shows the applicant was AWOL for 2 days, from 7 August 2009 to 9 August 2009. Her record contains a DA Form 31, two DD Forms 4187, and a flag, which confirm this fact. a. The applicant was AWOL and accrued 2 days of lost time. Title 10, U.S. Code, Section 972 requires enlisted service members to make up lost time, so that the total period of their service amounts to the full term of their enlistment. This means that her initial ETS date of 2 February 2010 became 4 February 2010. b. The applicant was discharged on 2 February 2010, exactly 4 years from the date of her enlistment, and 2 days short of the ETS dated required by Title 10, U.S. Code, Section 972. c. The applicant was discharged 2 days before her ETS date, and therefore, did not complete her first full term of service. 3. The VSO argued that the ABCMR must upgrade the applicant's character of service to honorable in accordance with Army Regulation 635-200, paragraph 4-5 because she was discharged on her ETS date, exactly 4 years from the date of her enlistment. a. Army Regulation 635-200, paragraph 4-5, states that a Soldier being separated upon expiration of enlistment or fulfillment of service obligation will be awarded a character of service of honorable. b. The evidence of record shows the applicant was 2 days short of her ETS date. As such, an upgrade of her characterization of service in accordance with Army Regulation 635-200, paragraph 4-5, is not applicable in her case. 4. The applicant was discharged under the provisions of Army Regulation 635-200, chapter 14-12b, for a pattern of misconduct. The available evidence confirms that all requirements of law and regulation were met and her rights were fully protected throughout the separation process. The records further show her discharge accurately reflects her overall record of service. 5. Her records include an extensive history of misconduct that includes numerous negative counseling statements and NJPs for dereliction of duty, failure to obey the orders of commissioned officers and NCOs, being disrespectful in deportment and language to the NCOs appointed above her, failure to report, AWOL, and assaulting a fellow Soldier. She also received NJP for knowingly submitting a fraudulent marriage certificate for approval of a claim against the government to move out of the single Soldier barracks, and for marring another Soldier who was already married. 6. Based on her record of indiscipline, her service does not meet the criteria for an honorable characterization of service as outlined in Army Regulation 635-200, paragraph 3-7. 7. The applicant's DD Form 214 reflects the SPD code "JKA" and an RE code of "4." Army Regulation 635-5-1, table 2-3 and the SPD/RE Code Cross Reference Table indicate that the SPD code of "JKA" has a corresponding RE code of "3." //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150006849 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150006849 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2