IN THE CASE OF:	  

		BOARD DATE:	  28 January 2014

		DOCKET NUMBER:  AR20130009142 


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 that her general discharge be upgraded to a fully honorable discharge with a more favorable narrative reason for separation.

2.  The applicant states, in effect, that she was unjustly discharged and that she was charged with adultery that was never proven because it was false.  She was charged with misconduct but was discharged for a pattern of misconduct; however, there was no such pattern.  The commander initially tried to administer nonjudicial punishment but she refused to accept it and demanded trial by court-martial; however, the commander decided to administratively discharge her, which was unjust because she was not allowed to fight her case.  She was never told who she was supposed to have committed adultery with and the unit simply accepted the medical personnel’s estimate of the time of her pregnancy which has resulted in the slandering of her name.     

3.  The applicant provides copies of her DD Form 214 (Certificate of Release or Discharge from Active Duty), the facts and circumstances surrounding her administrative discharge, and her daughter’s birth certificate showing that she was born in February 2012.

CONSIDERATION OF EVIDENCE:

1.  The applicant served as a unit supply specialist in the California Army National Guard for 1 year, 3 months and 24 days before she was honorably discharged on 28 January 2009 to enlist in the Regular Army on 29 January 2009 for a period of 4 years and training as an automated logistics specialist.  She completed her training at Fort Lee, Virginia and was transferred to Fort Hood, Texas for her first and only assignment.

2.  The applicant deployed to Iraq during the period 16 September 2010 – 
24 August 2011.

3.  The complete facts and circumstances pertaining to her administrative discharge are not present in the available evidence.  However, on 3 April 2012 the applicant’s commander notified her that he was initiating action to discharge her from the service under the provisions of Army Regulation 635-200, paragraph 14-12c, for commission of a serious offense.  He cited as the basis for his recommendation that on 6 September 2011 she was diagnosed by the troop medical clinic as being 5 to 10 weeks pregnant, which meant that she got pregnant while deployed to Iraq and her husband was not in theater and her Rest and Recuperation (R&R) Leave was in March 2011.  He also indicated that she had previously received company grade nonjudicial punishment (NJP) and field grade NJP.

4.  On 4 April 2012, after consulting with defense counsel, the applicant indicated that she would submit a statement in her own behalf within 7 days; however, there is no evidence that such a statement was submitted.

5.  The actual approval of the recommendation for discharge is not present in the available records.  The applicant was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct – pattern of misconduct on 14 May 2012.  She had served 3 years, 3 months and 16 days of active service during the period under review.

6.  The applicant applied to the Army Discharge Review Board (ADRB) on 
19 October 2012 for an upgrade of her discharge and a change in the narrative reason for her separation.  She contended at that time essentially the same reasons she has submitted to this Board in her current application.  However, after reviewing the available evidence in her case the ADRB determined that under the circumstances her discharge was both proper and equitable and voted unanimously to deny her request for an upgrade of her discharge on 22 March 2013.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories include minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, and commission of a serious offense, which includes drug offenses.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

8.  Paragraph 3-7a of that regulation 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.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative discharge was accomplished in accordance with the applicable laws and regulations with no indication of any violations of the applicant’s rights.

2.  Accordingly, the applicant’s discharge and narrative reason for separation appropriately characterizes her service.

3.  While the applicant’s contentions and supporting documents have been noted, there is insufficient evidence to overcome the presumption of regularity in this case.

4.  It is noted that the applicant returned from Iraq on 24 August 2011 and her child was born in February 2012, 6 months after her return from Iraq.  She had her R&R in March 2011, which was 13 months before the birth of her child.  Accordingly, she has failed to submit evidence to overcome the allegations against her.  

5.  While the evidence of record does not reflect the nature of the NJP imposed against her on two occasions, the two NJPs coupled with the allegation of adultery while deployed constitutes a pattern of misconduct. 

6.  Therefore, in the absence of evidence to show otherwise, there appears to be no basis to grant her request to upgrade her discharge or change her narrative reason for separation.  






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)                                         AR20130009142





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ABCMR Record of Proceedings (cont)                                         AR20130009142



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