IN THE CASE OF:	  

		BOARD DATE:	    10 September 2013

		DOCKET NUMBER:  AR20130002147 


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 be upgraded to honorable and that her rank to be restored to private first class (PFC)/E-3.

2.  She states she was not feeling well at guard duty in Iraq.  She maintains she was mentally unfit due to the 112 degree weather and she was not eating well.

3.  She provides the Army Discharge Review Board (ADRB) Case Report and Directive.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 6 October 2009 in the rank of private (PV1)/E-1.  She was subsequently promoted to the rank of PVT/E-2 on 
20 November 2010 and to PFC on 1 February 2011.  She served in Iraq from 
18 September 2010 through 3 August 2011.

2.  Her record is void of her disciplinary history which shows her acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice.  However, the ADRB Case Report and Directive stated that in the Commander's Report it was noted the applicant received an Article 15 between 1 March and 1 June 2010 (for drinking and purchasing alcohol during duty hours).  It was also noted that on 28 July 2011, she accepted NJP for failing to obey a lawful order by taking a thermogenic fat burner on 22 July 2011. 

3.  A DA Form 4187 (Personnel Action) shows that on 23 July 2011 the applicant was reduced from PFC to PVT.

4.  On 4 August 2011, she underwent a mental status evaluation and the psychiatrist cleared her for administrative separation and indicated that she had the mental capacity to understand and participate in the proceedings. 

5.  On 26 July 2011, the applicant consulted with military counsel.  After being advised of the basis for the contemplated separation action and its effects and the rights available to her, the applicant waived her rights.  She acknowledged she understood that she could encounter substantial prejudice in civilian life if a general discharge was issued to her.  She further acknowledged that she understood if she received a character of service which was less than honorable she could make an application to the ADRB or the Army Board for Correction of Military Records for an upgrade of her discharge.  However, she understood that an act of consideration by either board did not imply that her discharge would be upgraded.  She also understood that she would be ineligible to apply for enlistment in the U.S. Army for a period of 2 years after discharge.  She elected to submit a statement in her behalf.  

6.  In her statement, she requested permission to remain in the Army.  She recounted taking two stacker pills and getting sick while on duty.  She said she was trying to do the right thing by staying with her platoon.  She strongly believed that she was still a Soldier and she was turning her mistake into a learning experience.

7.  On 10 August 2011, the unit commander notified the applicant he was initiating action to separate her from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) paragraph 
14-12c, by reason of commission of a serious offense.  He stated that she was taken to the Battalion Aid Station on 22 July 2011 for vomiting blood while on duty.  During the physician "History" portion of her initial assessment, she informed him that she was taking a diet pill called "stacker."  This diet pill contained an ingredient (chitosan) that was restricted for use per a lawful order.  The commander recommended the issuance of a General Discharge Certificate.

8.  On 18 August 2011, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, paragraph 
14-12c, and directed the issuance of a General Discharge Certificate.

9.  Her DD Form 214 shows she was discharged under honorable conditions on 19 September 2011 by reason of misconduct under the provisions of Army Regulation 635-200, chapter 14.  Item 4a/b (Grade, Rate or Rank/Pay Grade) shows PV1/E-1 with an effective date of 23 July 2011.  She was credited with completing 1 year, 11 months, and 14 days of active service.

10.  On 14 March 2012, she appealed to the ADRB for an upgrade of her discharge.  On 24 October 2012, after careful consideration of her military records and all other available evidence, the ADRB determined she was properly and equitably discharged.  The board denied her request for a discharge upgrade.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and abuse of illegal drugs.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  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.

12.  Army Regulation 635-200, paragraph 3-7a, provides that 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 AND CONCLUSIONS:

1.  The applicant's argument, in effect, that her discharge should be upgraded to honorable because her mental state while in Iraq led to her indiscipline was considered.  However, there is no evidence and she has not provided any to show that her discharge was rendered in error or unjust.  Further, she had also accepted NJP prior to arriving in Iraq.

2.  The evidence shows that on 4 August 2011 she underwent a mental status evaluation and she was cleared for administrative separation.  The psychiatrist indicated that she had the mental capacity to understand and participate in the separation process. 

3.  The available evidence confirms that all requirements of law and regulation were met and her rights were fully protected throughout the separation process.  The record further shows her discharge accurately reflects her overall record of service.  
4.  Her record of indiscipline does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, she is not entitled to an honorable discharge.

5.  A DA Form 4187 shows that effective 23 July 2011, she was reduced from PFC to PV1.  There is no evidence in the available record and she provided no evidence to show her rank should be restored to PFC.  Therefore, in the absence of documentation to show her reduction was in error or unjust, the presumption of regularity must be applied.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ___X____  DENY APPLICATION

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.

ABCMR Record of Proceedings (cont)                                         AR20130002147



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ABCMR Record of Proceedings (cont)                                         AR20130002147



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