Applicant Name:  ?????

Application Receipt Date: 2010/04/13	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that she requests an upgrade of her discharge to fully honorable.  She contends that denial of parental responsibility according to AR 601-210 (2-10), when a joint custody agreement or order requires joint physical custody by an applicant without a spouse, the applicant is not eligible for enlistment; an Article 15 that was false based on a SFC's accusations that were not true; FM 27-1, when a Soldier has a home situation that creates a conflict between their military obligations and their duty to family, the command should act immediately to assist (no help at all); was not given the opportunity for a rehabilitative transfer; NCO lied on a DA Form 4856 (submitted a statement outling facts); passed every physical fitness test; and sharp shooter on M-16. 

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: 090908
Discharge Received: 			   Date: 091013   Chapter: 14-12c       AR: 635-200
Reason: Misconduct (Serious Offense)	   RE:     SPD: JKQ   Unit/Location: U.S. Army Dental Clinic Stuttgart, APO AE 09107 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 090625, behave with disrespect toward a CPT (090318); disrespectful in language toward a noncommissioned officer (SFC) (090312); willfully disobeyed a lawful order from a noncommissioned officer  (SFC) 090401); and dereliction of duty by willfully failing to treat a sickcall patient (090318); extra duty for two (2) days (FG).  

081021, without authority, absented herself from her unit (AWOL) (080812-080814); without authority, failed to go at the time prescribed to her appointed place of duty (080725); willfully disobeyed a lawful order from a noncommissioned officer (SSG) x 2 (080721), (080718); and dereliction of duty by failing to secure the back door to the clinic (080725); reduction to E-2 (FG).

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  27
Current ENL Date: 070225    Current ENL Term: 03 Years  with a moral waiver (070622)
Current ENL Service: 	02 Yrs, 07 Mos, 19 Days ?????
Total Service:  		02 Yrs, 07 Mos, 19 Days ?????
Previous Discharges: 	None
Highest Grade: E-3		Performance Ratings Available: Yes    No 
MOS: 68E10 Dental Spec   GT: 101   EDU: HS Grad   Overseas: Germany   Combat: None
Decorations/Awards: NDSM, ASR, OSR

V.  Post-Discharge Activity
City, State:  Babylon, NY 
Post Service Accomplishments: None Listed 

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 8 September 2009, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason of misconduct—commission of a serious offense for attempting to commit larceny at the Weisbaden Post Exchange by purchasing  a new Nintendo Wii console and returning a broken one for a refund, with a general, under honorable conditions discharge.  She was advised of her rights. 
        
       On 11 September 2009, the applicant consulted with legal counsel, was advised of the impact of the discharge action, did not submit a statement in her own behalf, and refused to sign her election of rights.  The unit commander subsequently recommended separation from the service and waiver of further rehabilitative efforts.  
       
       On 1 October 2009, the separation authority waived further rehabilitative efforts and directed that the applicant be discharged with a characterization of service of general, under honorable conditions.  
       
       The applicant's record contains a Military Police Report, dated 9 April 2009, with additional offenses, subjects,  persons, and property related to report.

       b.  Legal Basis for Separation:  
       Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of this regulation 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 documents submitted with the application, 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.  
       
       The analyst noted the applicant's issue regarding her parental responsibility according to the regulation; however, she raises an issue which is unclear and is not a matter on which the Army Discharge Review Board grants a change in discharge because it raises no matter of fact, law, procedure, or discretion relating to the discharge process nor is it associated with the discharge at the time of issuance. 
       
       The applicant contends an Article 15 was falsely given to her based on a SFC's accusations.  However, FM 27-1, stipulates that when a Soldier has a home situation that creates a conflict between their military obligations and their duty to family, the command should act immediately to assist and she received no help at all and an NCO lied when submitting the facts.  However, the analyst found no evidence of arbitrary or capricious actions by the command and was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 
       
       The applicant further contends she was not given the opportunity for a rehabilitative transfer.  AR 635-200, paragraph 1-16d(2), entitled counseling and rehabilitative requirements states that the rehabilitative requirements may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality Soldier. 
       
       She also contends that she passed every physical fitness test  and qualified as a sharp shooter on the M-16 rifle.  The analyst acknowledges the applicant’s in-service accomplishments and considered the quality of her service during the initial portion of the enlistment under review.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge under review.
       
       Therefore, the analyst determined that the reason for discharge and the characterization of service were both proper and equitable and recommends to the Board to deny relief.

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 14 January 2011         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: NA

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 293, dated (100118); four (4) Character Statements, dated (090909), (090909), (090909), (090815); Support Statement, undated; and three (3) Customer Comment Cards, dated (090818), (090818), (090818). 

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









Legend:
AWOL    	Absent Without Leave		GCM   General Court Martial	NA   Not applicable			SCM	Summary Court Martial
BCD   	Bad Conduct Discharge	GD      General Discharge	NIF   Not in the file			SPCM	Special Court Martial
CG 	Company Grade Article 15	HD      Honorable Discharge	OAD   Ordered to Active Duty		UNC	Uncharacterized Discharge  
DD 	Dishonorable Discharge	HS       High School Graduate	OMPF   Official Military Personnel File	UOTH  	Under Other Than Honorable 
FG	Field Grade Article 15		IADT   Initial Active Duty Training	RE     Reentry Code				Conditions 

ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20100012763
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