IN THE CASE OF: BOARD DATE: 9 August 2016 DOCKET NUMBER: AR20150010776 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: 9 August 2016 DOCKET NUMBER: AR20150010776 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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: 9 August 2016 DOCKET NUMBER: AR20150010776 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 under honorable conditions be upgraded to an honorable discharge. 2. The applicant states she needs an upgrade to receive benefits for school. She doesn't feel her type of discharge was fair. The pattern of misconduct she was discharged for was a build-up of petty offenses during her pregnancy. The chaplain changed her orders for a new unit and forced her out before her 3-year mark. During her out-processing she was told her case could have been turned around. The counseling statements she received up until she was discharged were for things such as pregnancy, physical training (PT), and her marriage. 3. The applicant provides a statement from Specialist (SPC) R____, dated 16 March 2010. 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. On 23 August 2007, she enlisted in the Regular Army for 4 years. She completed basic combat and advanced individual training and was awarded military occupation specialty (MOS) 56M (Chaplain Assistant). 3. During the period from 20 January 2009 - 7 April 2009 the applicant received five formal counseling sessions for offenses that included: * disrespect and lying to a noncommissioned officer (NCO) * allowing a civilian unauthorized access to her quarters and vandalism * breaking a "No Contact Order" * failing to appear for mandatory urine analysis * failing to comply with uniform standards for hair for females * failing to go at the prescribed time to her appointed place of duty 4. On four of the above occasions she was also advised that continued misconduct could result in non-judicial punishment (NJP) or adverse action including discharge prior to her expiration of term service (ETS). 5. On 21 April 2009, she received NJP for: * failing to obey a lawful order, command policy, by having a visitor in her room during non-visiting hours * four specifications of failing to go at the prescribed time to her appointed place of duty * being disrespectful in deportment toward an NCO 6. On 4 November 2009, the applicant received a mental status evaluation. The examiner found that the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness). The examiner further determined that the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings. 7. During the period from 30 April 2009 - 12 March 2010, the applicant received 13 formal counseling sessions concerning the performance of her duties and being at her appointed place of duty. 8. On 8 March 2010, the applicant's commander notified the applicant he was initiating action under the provisions of Chapter 14 of Army Regulation (AR) 635-200 (Personnel Separations Active Duty Enlisted Administrative Separations) to separate her from the Army due to her pattern of misconduct. The commander stated his reasons for the action were her NJP for four specifications of failing to report, one specification of disrespect toward an NCO, and one specification of disobeying a lawful general order or regulation. Since receiving the NJP she had failed to report numerous times to her appointed place of duty and disobeyed several lawful orders. The commander stated he was recommending she receive a general discharge under honorable conditions. 9. The commander advised the applicant of her right to: * consult with consulting counsel * submit written statements in her own behalf * obtain copies of documents that would be sent to the separation authority 10. The commander further advised the applicant that she may waive any of these rights in writing and she could withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves her discharge. The commander advised the applicant that failure to respond to the letter of notification constituted a waiver of her rights. 11. The applicant provided a statement from Specialist (SPC) R____, dated 16 March 2010. SPC R____ stated: a. She observed the applicant's workstyle as well as her character. She displayed nothing less than what a Soldier is really made of. Her strength to endure tough situations and not withdraw herself from them showed her willingness to push forward and complete the mission in the midst of adversity. b. The applicant completed tasks including upkeep of the chapel, multiple religious services, maximum participation in memorial ceremonies, and aided in the continuous religious support of her peers. c. Although the applicant was not a perfect Soldier, she had the ability to be an outstanding Soldier. The applicant's character was most exemplified when she was given the opportunity to overcome any flaws. She did not have any issue admitting when she was wrong and she was willing to adapt when given the opportunity and lead in the right direction. 12. On 23 March 2010, the applicant submitted a request for retention and a rehabilitative transfer. She stated: a. She was pending a separation under chapter 14 for patterns of misconduct. She requested that she be allowed to remain on active duty and given the opportunity to overcome her faults by being given a fresh start in a new environment. b. If given the chance to continue to move forward with the Army, her goals included advancing in rank, attending the Warrior Leader's Course, and preparing to become an NCO. She also wanted to deploy and gain real-life experiences as a chaplain assistant in a combat zone. c. She wanted a second chance to be the Soldier she knew she was and achieve the potential she knew she possessed and others had noticed. d. The second page of her statement was not available for review. 13. On 24 March 2010, the applicant acknowledged receipt of the separation notification and submitted a statement acknowledging that she had been advised by counsel of the basis for the contemplated separation action against her under the provisions of chapter 14 of AR 635-200 due to a pattern of misconduct. She also acknowledged she understood she could expect to encounter substantial prejudice in civilian life if she were issued a general discharge or an under other than honorable conditions discharge. The applicant indicated that she was submitting statements in her own behalf. 14. On 25 March 2010, the applicant's commander submitted a recommendation that she be discharged due to a pattern of misconduct with a general discharge under honorable conditions. The commander stated his reasons for the action were her NJP on 21 April 2009, for four specifications of failing to report, one specification of disrespect toward an NCO, and one specification of disobeying a lawful general order or regulation. Since receiving the NJP she had failed to report numerous times to her appointed place of duty and disobeyed several lawful orders. The commander stated the applicant had demonstrated by her actions and conduct that she was not suitable for any further military service. 15. On 30 March 2010, the appropriate authority approved the applicant's discharge under the provisions of chapter 14, paragraph 14-12b of AR 635-200 and directed that she receive a general discharge under honorable conditions. 16. On 19 April 2010, the applicant was discharged under the provisions of Chapter 14, paragraph 14-12b of AR 635-200 due to a pattern of misconduct. She had completed 2 years, 7 months, and 27 days of active service that was characterized as under honorable conditions (general). 17. The applicant applied to the Army Discharge Review Board (ADRB) to upgrade her discharge. On 22 November 2011, the ADRB reviewed and denied the applicant's request for upgrade. The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as under honorable conditions. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. When a Soldier's conduct or performance becomes unacceptable, the command will ensure that a responsible official formally notifies the Soldier of his deficiencies. At least one formal counseling session is required before separation proceedings may be initiated. The number and frequency of formal counseling sessions are discretionary. b. Establishes policy and prescribed procedures for separating members for misconduct. Paragraph 14-12b provides for the separation of a Soldier due to a pattern of misconduct. A discharge under other than honorable conditions is normally appropriate for a Solder discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. c. 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: 1. The applicant contends the pattern of misconduct that she was discharged for was a build-up of petty offenses during her pregnancy. However, she has not provided sufficient substantive evidence to support her contention. There is no evidence in her official military personnel file (OMPF) that she had orders to another unit. 2. Chapter 14 of AR 635-200 requires at least one formal counseling session before separation proceedings may be initiated. She was formally counseled on five occasions concerning her conduct prior to receiving NJP for violations of a lawful order, failing to go at the prescribed time to her- appointed place of duty, and disrespect toward an NCO. Subsequent to her NJP she was formally counseled on 13 occasions concerning her performance of duties and being at her appointed place of duty. 3. The applicant's commander and the separation authority clearly considered her entire period of service as she was recommended for and received a general discharge under honorable conditions where an under other than honorable discharge is normally considered appropriate. 4. The applicant was properly and equitably discharged in accordance with regulations in effect. The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case. The records contain no indication of procedural or other errors that would tend to jeopardize her rights. 5. The ABCMR does not correct records solely for the purpose of establishing eligibility for benefits. The granting of veterans benefits is not within the purview of the ABCMR and any questions regarding eligibility for these benefits should be addressed to the Department of Veterans Affairs. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150010776 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150010776 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2