BOARD DATE: 16 March 2017 DOCKET NUMBER: AR20150015351 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 BOARD DATE: 16 March 2017 DOCKET NUMBER: AR20150015351 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. BOARD DATE: 16 March 2017 DOCKET NUMBER: AR20150015351 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, in effect, correction of her U.S. Army Reserve (USAR) discharge orders, dated 27 March 2009, to show she received an honorable or general discharge in lieu of the under other than honorable conditions discharge that she received. 2. The applicant states: a. Due to miscommunication between her and her chain of command, the written and verbal requests to speak with her company commander, first sergeant, and battalion commander were never filtered through the proper channels. She believes this was the reason she was chaptered out of the USAR. She was not afforded legal counsel after her separation action was initiated. She was a private at the time and she had no knowledge of the Uniform Code of Military Justice process. She believes that her chain of command used her lack of understanding to their advantage. b. On 30 April 2008, she submitted a letter to her chain of command stating that she was having a financial hardship issues. She also requested to speak with her first sergeant and company commander in hopes they could assist her in finding a solution for her situation. The chain of command is responsible for taking care of their Soldiers and that was her expectation. She was a single parent, a full-time college student, and she was attempting to pay all of her bills at the same time. The pay of a private is not very much, which is why she was seeking assistance. She did not receive assistance from anyone in her chain of command. c. Her request to speak to the battalion commander on an open door policy went unheard. During this time, her financial situation was becoming worse. She informed her section sergeant that she was going to the Inspector General to file a complaint. That statement resulted in her getting along with her financial issues. There was a situation regarding Soldiers conducting battalion maintenance. Her peers were just sitting around so she decided to police call, clean her specified areas, and per previous guidance, she left for the day. 3. The applicant provides her Army Discharge Review Board (ADRB) Case Report and Directive, dated 7 November 2012. 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 the cases 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. 2. The applicant enlisted in the Regular Army on 31 May 2001 for 3 years. She held military occupational specialty (MOS) 75B (Personnel Administrative Specialist). 3. She was discharged in pay grade E-1 on 22 October 2002, under the provisions of Army Regulation (AR) 635-200, paragraph 14-12B, for misconduct. Her service was characterized as under honorable conditions (general). Her DD Form 214 shows she was credited with completing 1 year, 4 months, and 22 days of active service. 4. She enlisted in the Texas Army National Guard (TXANRG) on 16 December 2004. She held MOS 42A (Human Resources Specialist). She was honorably discharged from the TXARNG in pay grade E-1 on 15 May 2005 and she was transferred to the USAR Control Group (Annual Training). Her NGB Form 22 shows she was credited with completing 5 months of service. 5. Following her transfer to the USAR, she was assigned to a troop program unit, the 338th Military Intelligence Battalion, San Antonio, TX. 6. Her record is void of the complete facts and circumstances surrounding her discharge; however, her record contains the following: a. A DA Form 4856 (Developmental Counseling Form) showing she was counseled on 27 May 2008 for failing to clean up and disobeying her supervisor's orders on 4 May 2008. b. Orders Number 09-086-00014, issued by Headquarters, Headquarters Military Intelligence Readiness Command, dated 27 March 2009, discharging her from the USAR in pay grade E-2 effective 26 March 2009, under the provisions of AR 135-178 (ARNG and USAR Enlisted Administrative Separations), for misconduct. Her service was characterized as under other than honorable conditions. 7. On 7 November 2012, the ADRB determined the applicant's 2009 discharge from the USAR was both proper and equitable and voted to deny relief. REFERENCES: 1. AR 135-178, in effect at the time, provided for the orderly administrative separation of USAR enlisted Soldiers. The regulation provided for involuntary separation from the USAR for specific categories including misconduct. When a Soldier was subject to discharge for misconduct the characterization of service normally would be under other than honorable conditions, but a characterization of general (under honorable conditions) could be warranted. 2. AR 135-178 also stated in: a. Paragraph 2-9a – An honorable discharge was appropriate when the quality of the Soldier’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 2-9b – If a Soldier’s service had been honest and faithful, it was appropriate to characterize that service as under honorable conditions. Characterization of service as general was awarded to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. DISCUSSION: 1. The applicant's record is void of the complete facts and circumstances surrounding her 2009 discharge from the USAR. However, USAR orders show she was discharged from the USAR under other than honorable conditions on 26 March 2009. 2. No evidence has been presented which shows she was not properly and equitably discharged in accordance with the regulations in effect at the time and that all requirements of law and regulations were not met or that the rights of the applicant were not fully protected throughout the separation process. Absent such evidence, regularity must be presumed in this case. 3. There is also no evidence that she requested assistance with any problems, financial or otherwise, she may have been having during her period of USAR service. Presumably, her conduct and performance diminished the quality of her service below that meriting a general or fully honorable discharge during her period of USAR service. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150015351 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015351 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2