BOARD DATE: 27 September 2016 DOCKET NUMBER: AR20150011994 BOARD VOTE: __ x_______ __ x_____ _ x___ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 27 September 2016 DOCKET NUMBER: AR20150011994 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by upgrading the individual’s character of service to honorable and issuing her a new DD Form 214 for the period ending 28 July 1990 incorporating the previous changes and showing she was honorably discharged. ___________ 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. BOARD DATE: 27 September 2016 DOCKET NUMBER: AR20150011994 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 discharge (GD) be upgraded to an honorable discharge (HD). 2. The applicant states she was told her GD would automatically be upgraded after 7 years. 3. The applicant provides no supporting documentation. 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 4 March 1987, completed training, and was awarded 36L (Automatic Switching Systems Operator/ Maintainer). 3. The applicant was granted time in service and time in grade waivers for advancement to specialist four/E-4, effective 1 September 1988. 4. A 27 February 1990 DA Form 3355 (Promotion Point Worksheet) provides the following: * Army Physical Fitness Test (APFT) score of 298 (out of 300) * duty performance score 200, which is the maximum * Army Achievement Medals (2 Awards), Parachutist Badge, Certificates of Achievement (two), and the Sharpshooter Marksmanship Qualification Badge * 28 points for completion of correspondence courses and a total of 20 points for completion of four additional training courses * her total promotion points are shown as 710 out of 1,000 5. On 2 May 1990, the applicant received a negative general counseling statement from her first line supervisor for disobeying a lawful order by sleeping in the maintenance van during a field exercise. The applicant responded to the counseling, expressing her concerns for a lack of support from her supervisors and a negative command environment. She noted the unit was giving out more nonjudicial punishment (NJP) than awards and promotions for hard work. Her platoon sergeant informed them that he would not support them if they got into any kind of trouble. 6. On the following day, her first sergeant also gave her a negative counseling statement for the same incident, disobeying a lawful order by sleeping in the maintenance van during a field exercise. The fist sergeant noted that the applicant was a senior E-4 and her actions did not reflect the standards of a potential noncommissioned officer. He recommended she receive an NJP and be removed from the E-5 promotion list. The applicant did not offer any comment on this counseling statement. 7. On 13 June 1990, the applicant received NJP under the provisions of Article 15, Uniform Code of Military Justice for disobeying a lawful order by sleeping in a van/vehicle during a field exercise. The punishment imposed was reduction to private first class/E-3, a forfeiture of $215 pay (both suspended), and 7 days of extra duty. The applicant did not appeal this NJP or offer any written statement on her own behalf. 8. On 14 June 1990, the applicant received a negative general counseling statement for departing her place of duty without informing her first line supervisor. It appears the suspended punishment was vacated, based on this negative counseling. 9. On 28 June 1990, the applicant underwent a mental status evaluation. It was determined that she had the mental capacity to understand ad participate in proceedings (deemed appropriate by her chain of command). It was also determined that she was also mentally responsible and met retention requirements. 10. On 29 June 1990, the applicant’s unit commander notified the applicant of his intent to initiate separation action against her for unsatisfactory performance, based on the previous counseling’s and field exercise incident, with the issuance of a GD. The commander stated that during the period the applicant had been assigned to the unit her duty performance had been unsatisfactory. He recommended that the rehabilitative transfer provisions of the regulation be waived, since in his opinion it was not in the best interest of the Army. 11. On 29 June 1990, the applicant acknowledged receipt of the notification recommendation and requested counsel, but elected not to submit a written statement on her own behalf. On 3 July 1990, the applicant consulted with legal counsel and did not submit a statement in her own behalf. 12. On 9 July 1990, the separation authority approved the separation action and directed the issuance of a GD. 13. The applicant was discharged on 26 July 1990 with a GD. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she completed 3 years, 4 months, and 23 days of creditable service with no lost time. Her awards are listed as the Army Service Ribbon and the Army Achievement Medal with 1 Oak Leaf Cluster. 14. The applicant's DA Form 2-1 (Personnel Qualification Record - Part II) lists her awards as the Army Service Ribbon, Good Conduct Medal, and the Army Achievement Medal (2nd Award). 15. The available record contains nine certificates of training, two Certificates of Achievement, and orders for one Army Achievement Medal. 16. On 8 December 1991, the applicant requested an upgrade of the character of her service and reason for discharge. She stated she had been given permission to sleep in the unused area because the female Soldiers' sleeping tent had not been setup. She believed the NJP was unjust because the person who had given her permission to utilize the space did not own up to the fact when the first sergeant came looking for her. 17. On 21 July 1994, the Army Discharge Review Board denied the applicant's request to upgrade her discharge. However, she was issued a DD Form 215 (Correction to DD Form 215) changing: * item 25 (Separation Authority) from Army Regulation 635-200, chapter 13 to “chapter 5, section II * item 26 (Separation Code) from JHJ to “JFF” * item 28 (Narrative Reason for Separation) from unsatisfactory performance to “Secretarial Authority” REFERENCES: 1. Army Regulation 635-200, chapter 13, then in effect, stated commanders could separate a Soldier for unsatisfactory performance when it is clearly established that: a. In the commander's judgment, the Soldier will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier; b. The seriousness of the circumstances is such that the Soldier's retention would have an adverse impact on military discipline, good order, and morale; c. It is likely that the Soldier will be a disruptive influence in present or future duty assignments; d. It is likely that the circumstances forming the basis for initiation of separation proceedings will continue or recur; e. The ability of the Soldier to perform duties effectively in the future, including potential for advancement or leadership, is unlikely; f. The Soldier meets retention medical standards; and g. Before initiating separation action against a Soldier, commanders will insure that the Soldier has received adequate counseling and rehabilitation. Because military service is a calling different from any civilian occupation, a Soldier should not be separated when unsatisfactory performance is the sole reason unless there have been efforts at rehabilitation. 2. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). Paragraph 1–8 states the ABCMR board members will: a. Review all applications that are properly before them to determine the existence of error or injustice; b. Direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record; and c. Deny applications when the alleged error or injustice is not adequately supported by the evidence and when a hearing is not deemed proper. DISCUSSION: 1. The U. S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges. Each case is decided on its own merits when an applicant requests a change in the discharge. Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable. 2. The separation regulation, in effect at the time, stated that if in a commander's judgment, a Soldier would not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier, the commander was to initiate separation action. 3. The separation regulation required that the Soldier meet five requirements prior the commander initiating separation action and that commanders were to insure that the Soldier had received adequate counseling and rehabilitation. 4. The only counseling of record are the two notifications that she was being recommendation for NJP action and her removal from the E-5 promotion list. This does not constitute adequate counseling or rehabilitation as required by regulation. 5. The only reference to any rehabilitative action was not addressed until after separation action had been initiated and that was only in the form of the unit commander's recommendation that the requirement for a rehabilitation transfer be waived. 6. The issuance of the NJP and removal from the promotion list does not constitute adequate counseling or rehabilitation as required by the regulation. The applicant's command had not complied with the existing regulation to afford the applicant the required counseling or to offer some type of rehabilitative action. 7. The applicant was an E-4, on the E-5 promotion list, and reports being awaiting assignment to the Jump Master School at the time of the field exercise incident. She was in receipt of the Army Achievement Medal with one Oak Leaf Cluster, Good Conduct Medal, Army Service Medal, Parachutist Badge, and the Sharpshooter Marksmanship Qualification Badge. (NOTE: Only the Army Achievement Medals and the Army Service Ribbon are recorded on her DD Form 214.) 8. The same commander who recommended the applicant for separation stating that her service during the time assigned to the unit had been unsatisfactory, had only two months earlier given her the maximum duty performance score possible and recommended her for promotion. The information on the promotion worksheet clearly shows a Soldier with significant potential for developing into a highly successful Soldier. 9. The commander's failure to follow the regulation creates an injustice. His statement that her duty performance had been unsatisfactory during the period she was assigned to the unit contradicts the awards she received and his promotion recommendation only 2 months earlier. 10. The applicant violated an order and slept in a van/vehicle while on a field exercise. However, the inconsistences noted above lend credence to the applicant's statements that there was not only a negative command environment in the unit, but that the reason for the NJP was a result of poor supervisory acceptance of even partial blame for the NJP incident. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011994 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011994 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2