Applicant Name:  ?????

Application Receipt Date: 2008/03/13	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: See DD Form 293 and attached documents submitted by the applicant.

II.  Were Proper Discharge and Separation Authority procedures followed?	     
Tender Offer:   NA

See Attachments:  Legal     Medical     Minority Opinion     Exhibits 

III.  Discharge Under Review
Unit CDR Recommended Discharge: 	   Date: 960405
Discharge Received: 			   Date: 960802   Chapter: 14       AR: 635-200
Reason: Misconduct	   RE:     SPD: JKB   Unit/Location: HHC, 1st ID, APO AE 09036 

Time Lost: None

Article 15s (Charges/Dates/Punishment): None

Courts-Martial (Charges/Dates/Punishment): None

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  25
Current ENL Date: 910228    Current ENL Term: 5 Years  The applicant extended for 6 months (940407).
Current ENL Service: 	05 Yrs, 05Mos, 03Days ?????
Total Service:  		05 Yrs, 06Mos, 15Days Item 12e on the DD Form 214, total prior inactive service is incorrect, should read 00 Yrs, 01 Mos,12 Days. 
Previous Discharges: 	USAR-910116-910227/NA
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 71D10 Legal Spec   GT: 116   EDU: 14 Years   Overseas: Germany   Combat: None
Decorations/Awards: AAM, AGCM, NDSM, ASR, ASUA

V.  Post-Discharge Activity
City, State:  Colorado Springs, CO
Post Service Accomplishments: The applicant submitted a document which shows she earned a BA Degree from  University of Phoenix 15 February 2007.

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       Evidence of record shows that on 5 April 1996, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, AR 635-200, by reason of misconduct-pattern of misconduct for making numerous false official statements, disrespectful in language and deportment towards NCOs, and failed to follow instructions, with a general, under honorable conditions discharge.  She was advised of her rights.  The applicant consulted with legal counsel, was advised of the impact of the discharge action, and submitted a statement in her own behalf.  The unit commander subsequently recommended separation from the service and waiver of further rehabilitative efforts.  The intermediate commander reviewed the proposed discharge action and recommended approval of the separation action with a general, under honorable conditions discharge.   On 29 July 1996, the separation authority waived further rehabilitative efforts and directed that the applicant be discharged with a characterization of service of general, under honorable conditions.

       b.  Legal Basis for Separation:  
       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, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  Army policy states that an under other than honorable conditions discharge is normally considered appropriate, however, a general under honorable conditions or an honorable discharge may be granted.

       c.  Response to Issues, Recommendation and Rationale:  
       After a careful review of all the applicant’s military records during the period of enlistment under review, the  issues and document she submitted, the analyst found no mitigating factors that would merit an upgrade of the applicant's discharge.  The applicant’s discharge was appropriate because the quality of her service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel.  By her misconduct, the applicant diminished the quality of her service below that meriting a fully honorable discharge.  The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant’s service mitigated the misconduct or poor duty performance.  Furthermore, the analyst noted the applicant's issues as listed below from (1-17, and 20);  
       
       Issue (1) Rejected.  The analyst noted the applicant's issue; requesting the reversal of her general, under honorable conditions discharge to medically retired due to permanent disability, however, the evidence of record shows that on 12 April 1996, a memorandum of record indicates that the applicant had a known history of moderately severe asthma and that the applicant met the criteria for a Medical Evaluation Board (MEB) and that procedure was in progress which was signed by a MAJ, MC, Internist/Pediatrician.  On 2 May 1996, memoramdum for commander recommended that the applicant's Chapter 14 separation proceedings be held in abeyance until the medical board meets and renders findings regarding her medical status which was signed by a CPT, JA, Defense counsel.  Further, on 22 July 1996, another memorandum addressed to the commander, indicating that the separation proceedings under the provisions of Chapter 14, paragraph 14-12b, by reason of patterns of misconduct may proceed in lieu of physical evaluation process signed by a CPT, JA, Civil Law Division.  AR 635-200, Chapter 1, paragraph 1-33, states that the General Court Martial Convening Authority (GCMCA), when the medical treatment facility (MTF), commander or attending medical officer determines that a Soldier being processed for administrative separation under Chapter 14, does not meet the medical fitness standards for retention he or she will refer the Soldier to a Medical Evaluation Board (MEB), in accordance with AR 40-3, Chapter 7.  The administrative separation proceedings will continue, but final action by the separation authority will not be taken pending the results of the MEB.  AR 635-200, Chapter 1, paragraph 1-33(2), states that the authority of (GCMCA) to determine whether a case is to be processed through medical disability channnels or under administrative separation provisions will not be delegated.  The evidence of record shows that the separation authority approved the applicant's administrative separation action by reason of patterns of misconduct, with a general, under honorable conditioins discharge.  
       
       Issue (2) Rejected.  The unit commander's request for psychiatric evaluation was not a result of the applicant submitting an IG/EO complaint.  AR 635-200, paragraph 1-32a &b states medical examinations are required for Soldiers being processed for separation under Chapter 14 (section III only).  In addition to medical examinations, mental status evaluations conducted by a psychologist, or master level, licensed clinical social worker, are required for Soldiers being processed for separation under Chapters 14 (section III).
       
       Issue (3) Rejected.  The applicant received three negative counseling statements which were part of her discharge packet.  The evidence of record shows that the command attempted to assist the applicant in performing and conducting herself to Army standards by providing counseling.  The applicant failed to respond appropriately to these efforts.
       
       Issue (4) Rejected.  The applicant stated she had no consistency in counseling as evident by 10 different people who counseled her during a sixteen month period.  However, AR 635-200, paragraph 1-16 (3) and (4), states each counseling session must be recorded in writing.  DA Form 4856 (General counseling Form) will be used for this purpose.  The Soldier's counseling or personal records must reflect that she was formally counseled concerning her deficiencies and given a reasonable opportunity to overcome or correct them.  The evidence of record shows that the counseling statements were authenticated by the applicant's signature.
       Issue (5) Rejected.  The applicant  states she never received an Article 15.  The evidence of record shows that an Article 15 with no signatures was part of the discharge packet, however, no signatures indicate that the Article 15 was never executed which constituted no UCMJ action being taken. 
       
       Issue (6) Rejected.  The applicant's states she was discharged for using services which she was entitled to use, however,  a memorandum dated 20 March 1996, signed by a  COL, U.S. Army, Chief, Army Standards of Conduct Office, stated; we carefully reviewed your allegations, they are unsupported by anything other than assertions previously found by the EO/IG Office to be unsubstantiated.  Applicable Army regulation state that there are circumstances in which the conduct or performance of duty reflected by incidents of misconduct  provides the basis for a characterization.  The analyst having examined all the circumstances determined that the applicant's incidents of misconduct did indeed adversely affect the quality of service, brought discredit on the Army, and was prejudicial to good order and discipline.  These incidents of misconduct clearly diminished the quality of the applicant's service below that meriting a fully honorable discharge. 
       
       Issue (7) Rejected.  The applicant stated according to AR 635-200, Chapter 1, Section II, paragraph 1-16(c)2, Soldiers will be reassigned at least once unless there is a waiver.  AR 635-200, paragraph 1-16(d)2 and 3, states the rehabilitative transfer requirement in Chapters 14, may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such a transfer will serve no useful purpose or produce a quality Soldier.  Waiver of  rehabilitative transfer may be granted at any time on or before the date the separation authority approves or disapproves the separation proceedings.  The evidence of record shows that the separation approving authority wavied the rehabiltative transfer rquirements. 
       
       Issue (8) Rejected.  The applicant's discharge packet paragraph 1g in the unit commander's recommendation memorandum states she attempted to collect temporary lodging allowance (TLA), which she knew she was not entitled.  On 25 May 1994, Orders 100-24, authorized the applicant concurrent travel of her dependents to a friend's/relative's private rental address (not Government quarters or Government leased).  In a memorandum dated 5 October 1994, signed by a MAJ, JA, OIC, Bamberg Law Center, stated the reason the applicant was not receiving TLA or Government housing was because the applicant's permanent change of station (PCS) orders authorized concurrent travel of her dependents to a friend's/relative's private rental address, which nullified the applicant receiving TLA.  
       
       Issue (9) Rejected.  The applicant's discharge packet paragraph 1g in the unit commander's recommendation memorandum states she was not on profile for most of the time.  The evidence shows that the discharge packet contains a profile dated 10 July 1995, which indicated permanent profile and PT at own pace and distance.  In a counseling statement dated 31 July 1995, it indicated the applicant came to the Bamberg Law Center with a no running profile due to asthma.  It further indicated on the applicant's own volition she took herself off profile and began working out gradually to improve her running.  A second profile dated 16 October 1995, indicated permanent profile and exercise at own pace and distance and further showed walk/run at her own pace and distance.  Finally, in a memorandum dated 20 March 1996, signed by a COL, U.S. Army, Chief, Army Standards of Conduct Office, stated in fact the evidence indicated the applicant was not on profile much of the time that she gave her supervisiors in her  office and unit the impression she was on a profile.
       
        Issue (10) Rejected.  The applicant states that she should not have to suffer from any sexual harassament or any harassament at all.  Enclosed in the applicant's discharge packet are statements by a SSG and a MAJ.  The statements are their responses to the EO/IG complaints the applicant pursued.  A memorandum dated 20 March 1996, signed by a COL, U.S. Army, Chief, Army Standards of Conduct Office, indicated that the applicant's allegations of gender discrimination, sexual harrassment and being treated unfairly in the legal office, failed to be substantiated or determined that her complaints were unfounded.     
       
       Issue (11) Rejected.  The applicant's supervisor a MAJ, requested she be chaptered from the military on 20 December 1995, and the applicant feels that this action was unjust.  The analyst found no evidence of arbitrary or capricious actions by the command.  The analyst was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 
       
       
        
       Issue (12) Rejected.  The applicant's request  that her discharge paperwork be changed from SPC/E-4  to SGT/E-5, however, this issue does not fall within the purview of the Army Discharge Review Board.  The applicant may apply to the Army Board for Correction of Military Records (ABCMR), utilizing DD Form 149 regarding this matter.  An application for that Board is enclosed. 
       
       Issue (13) Rejected.  The applicant stated that she feels assigning her another defense counsel was unfair and unjust.  However,  the analyst found no evidence of arbitrary or capricious actions by the command.  The analyst was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.   
       
       Issue (14) Rejected.  The applicant's issue indicating that her separation (SPD) code "JKB" in block 26 on the DD Form 214 is incorrect, however, AR 635-5-1, Separation Program Designator (SPD) Codes dated 13 August 1993, list the separation code as "JKB" and the narrative reason for separation as "misconduct" with a corresponding reentry eligibility (RE Code) of "4" at the time of her separation. 
       
       Issue (15) Rejected.  The applicant's request  that her DD Form 214 should reflect that she completed 5 years of service and indicate that she completed her first term of enlistment, however, this issues does not fall within the purview of the Army Discharge Review Board.  The applicant may apply to the Army Board for Correction of Military Records (ABCMR), utilizing DD Form 149 regarding this matter.  An application for that Board is enclosed. 
       
       Issue (16) Rejected.  The applicant's DD Form 214 shows the applicant was awarded two Good Conduct  Medals, however, Orders 06-11, dated 11 January 1993, shows that the applicant received her first  Good Conduct  Medal for the period of service (900228-930227), and her second Good Conduct  Medal for the period of service from (910228-940227), according to orders 60-03, dated 1 April 1994.  The applicant's separation action was initiated on 5 April 1996, for the misconduct which led to the separation under review, and is not in contradiction of the Good Conduct  Medals awarded her.  
       
       Issue (17) Rejected.  The applicant states she received several awards and letters of recommendation from her superiors, which are not in her record, however, this issue does not fall within the purview of the Army Discharge Review Board.  The applicant may apply to the Army Board for Correction of Military Records (ABCMR), utilizing DD Form 149 regarding this matter.  An application for that Board is enclosed. 
       
              Issue (20) Rejected.  The analyst acknowledges the applicant's enclosed letter from the VA that shows the applicant is a disabled veteran and has a rating for asthma and migraines, however, this issues does not fall within the purview of the Army Discharge Review Board.  Accordingly, the applicant should continue to consult with her VA representative at the Department of Veterans Affairs for further assistance.

Having examined the applicant's entire record of service and the issues she submitted, the analyst determined that the applicant's discharge was both proper and equitable and recommends to the Board to deny relief.

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 21 January 2009         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: NA

Witnesses/Observers: NA 

Exhibits Submitted: NA





VIII.  Board Discussion, Determination, and Recommendation
After carefully examining the applicant’s record of service during the period of enlistment under review and considering the analyst’s recommendation and rationale, the Board determined that the discharge was both proper and equitable and voted to deny relief. 

        
IX.  Board Decision						
	XI.  Certification Signature
Board Vote:  							          Approval Authority:	
Character - Change 0    No change 5
Reason -     Change 0    No change 5
(Board member names available upon request)
								         EDGAR J. YANGER			 
								         Colonel, U.S. Army
X.  Board Action Directed					         President, Army Discharge Review Board
Issue a new DD Form 214  					
Change Characterization to: 			         
Change Reason to: No Change
Other: NA										
RE Code: 
Grade Restoration:   No   Yes   Grade: None
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20080005288
______________________________________________________________________________

Page 1 of 5 pages