IN THE CASE OF: BOARD DATE: 16 August 2016 DOCKET NUMBER: AR20150012625 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: 16 August 2016 DOCKET NUMBER: AR20150012625 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: 16 August 2016 DOCKET NUMBER: AR20150012625 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 restoration of her former rank/grade of specialist (SPC)/E-4. 2. The applicant states, in effect: * her rank was restored after the Army Discharge Review Board (ADRB) upgraded her general discharge to fully honorable in 1997 * shortly after that, her rank was reduced because of improper authorization by the ADRB, also in 1997 * her rank was initially reduced due to reprisal, after her sexual harassment complaint was substantiated in 1995 3. The applicant provides: * Letter, dated 31 October 1997, from the ADRB advising the applicant her discharge had been upgraded * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Letter, dated 19 December 1995, from the Equal Opportunity (EO) Office, Fort Gordon, GA * Letter, dated 16 July 1997, from the Office of the Staff Judge Advocate at Fort Gordon, GA 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 30 July 1992 and held military occupational specialty 71L (Administrative Specialist). She was assigned to the 551st Signal Battalion, Fort Gordon, GA. She was promoted to private first class/E-3 on 30 July 1993 and to SPC/E-4 on 1 January 1994. 3. On 18 May 1994, she accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to show up at her appointed place of duty. She elected not to appeal the punishment. 4. On 12 September 1994, she again accepted NJP under the provisions of Article 15 of the UCMJ for failing to show up at her appointed place of duty. She elected not to appeal the punishment. 5. Her record contains an extensive history of negative counseling by her chain of command for various infractions including: * failure of multiple Army Physical Fitness Tests (APFT) * exceeding weight control standards * multiple instances of missing formation * multiple incidents of writing dishonored checks * a lack of motivation and falling out of battalion runs * pleading guilty to traffic violations * multiple instances of failing to be at her appointed place of duty 6. On 26 April 1995, the applicant's immediate commander advised her of his intent to initiate separation action against her under the provisions of chapter 13 of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), because of unsatisfactory performance. The immediate commander recommended an honorable discharge and cited the specific reasons as her repeated APFT failures. 7. On 26 April 1995, the applicant acknowledged notification of the proposed separation action. She subsequently consulted with legal counsel. She acknowledged that she had been advised of the basis for the contemplated separation action under the provisions of chapter 13 of AR 635-200 and she had been advised of the effect on future enlistments in the Army and of the procedures and rights that were available to her. 8. Subsequent to the applicant's acknowledgement and consult with counsel, her immediate commander initiated separation action against her for unsatisfactory performance. On 10 July 1995, the separation authority approved her discharge with an honorable characterization of service. However, the separation authority withdrew this approval at a later date due to her misconduct. 9. On 2 August 1995, the applicant's battalion commander notified her of his intent to consider whether she should be punished under Article 15, UCMJ, for misconduct. After consulting with counsel, she declined trial by a court-martial, requested an open hearing, declined to have a person speak in her behalf, and elected to present matters in her defense, extenuation and/or mitigation. 10. On 3 August 1995, at an open hearing, she received NJP under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to her appointed place of duty and other infraction(s) (the continuation sheet is not available for review). Her punishment consisted of a reduction to private (PVT)/E-1, a forfeiture of $100 pay, and 15 days of extra duty. She elected not to appeal the punishment. 11. Following this misconduct, the separation authority withdrew the approval of an honorable discharge that he had signed on 10 July 1995. Instead, he waived further rehabilitation requirements and directed that her service be characterized as under honorable conditions and the issuance of a General Discharge Certificate. On 10 August 1995, the applicant was discharged accordingly. 12. Her DD Form 214 shows she was discharged under the provisions of chapter 13 of AR 635-200 by reason of unsatisfactory performance with a general discharge. She had completed a total of 3 years and 11 days of creditable active military service. Her DD Form 214 shows in: * Items 4a (Grade, Rate or Rank) and 4b (Pay Grade) PVT and E-1 * Item 12h (Effective Date of Pay Grade) “1995 08 03” 13. In December 1995, she filed a sexual harassment complaint against her unit first sergeant and charged that she had been issued a general discharge due to that harassment. As a result, by memorandum, dated 12 June 1996, the Fort Gordon EO Office informed her that an inquiry was conducted and substantiated her allegations of sexual harassment but did not substantiate her allegation of influence/reprisal as it pertained to her discharge. 14. On 13 August 1997, the ADRB reviewed her discharge processing to include the letter from the EO office. The ADRB determined that her discharge was proper but the characterization of service was inequitable. The ADRB directed the issuance of a new DD Form 214 reflecting an honorable discharge with a restoration of her pay grade to E-4. 15. Her DD Form 214 was voided and she was issued a new DD Form 214 reflecting she was discharged due to unsatisfactory performance with an honorable discharge. Her DD Form 214 shows in: * Items 4a and 4b, SPC and E-4 * Item 12h, “1994 01 01” 16. On 16 July 1997, the Staff Judge Advocate at Fort Gordon opined that the separation authority erred in reversing the decision to approve a general discharge vice the original honorable discharge without re-initiating the separation action and allowing the member an opportunity to submit an additional rebuttal based on new information. 17. On 8 January 1999, the applicant was issued a DD Form 215 (Correction to DD Form 214) that amended her rank/grade from SPC/E-4 to PVT/E-1 and her effective date of pay grade from 19940101 to 19950803 respectively. REFERENCES: 1. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance and provides, in pertinent part, that commanders will separate a member under this chapter when in the commander’s judgment the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier. Paragraph 3-7a states 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. 2. Title 10, U.S. Code, section 1553, states the Secretary concerned shall establish a board of review, consisting of five members, to review the discharge or dismissal (other than a discharge or dismissal by sentence of a general court-martial) of any former member of an armed force under the jurisdiction of his department upon its own motion or upon the request of the former member or, if he is dead, his surviving spouse, next of kin, or legal representative. A motion or request for review must be made within 15 years after the date of the discharge or dismissal. 3. AR 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial. a. It provides that a commander should use nonpunitive administrative measures to the fullest extent to further the efficiency of the command before resorting to NJP under the UCMJ. Use of NJP is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate. If it is clear that NJP will not be sufficient to meet the ends of justice, more stringent measures must be taken. Prompt action is essential for NJP to have the proper corrective effect. NJP may be imposed to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures; to preserve a Soldier's record of service from unnecessary stigma by record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial b. Paragraph 3-28 describes setting aside and restorations. This is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored. NJP is "wholly set aside" when the commander who imposed the punishment, a successor-in-command, or a superior authority sets aside all punishment imposed upon an individual under Article 15. The basis for any set aside action is a determination that, under all the circumstances of the case, the punishment has resulted in a clear injustice. "Clear injustice" means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier. An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier. DISCUSSION: 1. The evidence of record shows the applicant displayed a pattern of unsatisfactory performance as evidenced by her extensive history of negative counseling, Article 15s, and multiple APFT failures. She displayed substandard performance and appears to have been unable to conform to Army standards. Accordingly, her immediate commander initiated separation action against her. 2. Her administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized her rights. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. She was discharged with a general discharge. 3. The ADRB reviewed her discharge and found it proper but not equitable. As a result, the ADRB upgraded her discharge and erroneously restored her former rank/grade to SPC/E-4. Her reduction was caused by the NJP, not by her discharge action. When the error was discovered, a DD Form 215 was processed to reflect the correct rank/grade at the time of discharge. 4. She was reduced to the lowest enlisted grade as a result of NJP; not as a result of her discharge action. The commander administering the Article 15 proceedings determined she committed the offense(s) in question during an open Article 15 hearing after considering all the evidence submitted. The evidence confirms she waived her right to a trial by court-martial and opted for an open Article 15 hearing. The imposing commander found her guilty and the resultant punishment consisted of her reduction to E-1. She elected not to appeal. Her NJP proceedings were conducted in accordance with law and regulation. 5. There is no evidence in her records and she provides none to show she was promoted back to E-4 after she was reduced to pay grade E-1 on 3 August 1995 due to an NJP. She held the rank/grade of PVT/E-1 at the time of discharge and this is what her DD Form 214 shows as amended by a DD Form 215. Her discharge processing has no bearing on her reduction in rank as a result of an NJP. 6. Additionally, the ADRB was within its authority to upgrade her discharge but did not have the authority, in this case, to restore her rank/grade to SPC/E-4. 7. There is no evidence in the available record and she provides none to show she was promoted back to E-4 between the date of her reduction to E-1 and her discharge date. Therefore, her DD Form 214 correctly reflects her rank/grade as PVT/E-1. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012625 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012625 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2