Applicant Name:  ?????

Application Receipt Date: 2011/12/27	Prior Review:     Prior Review Date: Record Review (111021)  

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant through legal counsel states, in effect, that she requests an upgrade of her discharge to general, under honorable conditions or fully honorable and a change to the narrative reason for separation.  She contends that the Deputy Assistant Secretary of the Army relied upon the erroneous recommendation of the General Court-Martial Convening Authority (GCMCA), Fort Drum, not to approve the findings of the Physical Evaluation Board (PEB) directing a medical discharge with 20% disability, but approved the under other than honorable conditions discharge.   

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: 100421
Discharge Received: 			   Date: 100520   Chapter: 3      AR: 635-200
Reason: In Lieu of Trial by Court-Martial	   RE:     SPD: DFS   Unit/Location: HHC, 10th Sustainment Bde Trps Bn, Fort Drum, NY 

Time Lost: None

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

Courts-Martial (Charges/Dates/Punishment): 100407, GCM, Failed to go at the time prescribed to her appointed place of duty x 26 (091113), (100105), (100120), (100121), (100122), (100125), (100126), (100129), (100205), (100208), (100209), (100210), (100211), (100216), (100218), (100219), (100223), (100224), (100224), (100225), (100226), (100301), (100302), (100303), (100304), (100305); behave with disrespect toward a superior commissioned officer (CPT) x 4 (091112), (100204), (100209), (100222), (100301); willfully disobeyed a lawful order from a CPT (100121); willfully disobeyed a lawful order from a LTC (100209); and willfully disobeyed a lawful order from a COL (100216); forfeiture of $500 pay x 1 month and to be reprimanded.    

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  22
Current ENL Date: 070118    Current ENL Term: Indef Years  (Block 12a of the DD Form 214 under review incorrectly shows the: Dated Entered AD this Period as; (060607) should read (070118).
Current ENL Service: 	03 Yrs, 04  Mos, 03  Days ?????
Total Service:  		03 Yrs, 11  Mos, 14  Days ?????
Previous Discharges: 	RA-060607-070117/HD
Highest Grade: O2		Performance Ratings Available: Yes    No 
MOS: 70B/Health Services Admin   GT: NA   EDU: BS   Overseas: None   Combat: None
Decorations/Awards: NDSM, GWOTSM, ASR

V.  Post-Discharge Activity
City, State:  ?????
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 March 2010, the applicant was charged with failing to go at the time prescribed to her appointed place of duty x 26 (091113), (100105), (100120), (100121), (100122), (100125), (100126), (100129), (100205), (100208), (100209), (100210), (100211), (100216), (100218), (100219), (100223), (100224), (100224), (100225), (100226), (100301), (100302), (100303), (100304), (100305); behaving with disrespect toward a superior commissioned officer (CPT) x 4 (091112), (100204), (100209), (100222), (100301); willfully disobeying a lawful order from an officer CPT (100121); willfully disobeying a lawful order from a LTC (100209). 
       
       On 6 April 2010, the applicant voluntarily tendered her resignation for the good of the service under the provisions of Chapter 3, paragraph 3-13, AR 600-8-24.  The applicant was advised of her rights and understood that if her resignation was accepted, she could receive any type of discharge as determined by Headquarters DA.  The applicant's chain of command documentation recommending approval of the applicant's resignation with issuance of an under other than honorable conditions discharge is not contained in the available record and the analyst presumed government regularity in the discharge process.  On 21 April 2010, the Commander, HQS, 10th Mountain Division (LI) and Fort Drum, Fort Drum, NY, recommended approval of the applicant's resignation with issuance of an under other than honorable conditions discharge.  
       
       On 11 May 2010, the Deputy Assistant Secretary (Army Review Boards) approved the recommendation of the Army Ad Hoc Review Board and directed the applicant’s discharge with a characterization of service of under other than honorable conditions.

       b.  Legal Basis for Separation:  
       Army regulation 600-8-24 prescribes the policies and procedures governing the transfer and discharge of Army officer personnel.  Chapter 3, paragraph 3-13 outlines the rules for processing requests for resignation for the good of the Service in lieu of trial by a general court-martial.

       c.  Response to Issues, Recommendation and Rationale:  
       After a careful review of all the applicant’s military records during the term of service 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 evidence of record shows that the applicant was charged with the commission of offenses punishable under the Uniform Code of Military Justice with a punitive discharge.  The applicant voluntarily requested resignation in  under the provisions of Chapter 3, paragraph 3-13, AR 600-8-24.  The appropriate authority approved the applicant's request and issuance of an under other than honorable conditions characterization of service.  The analyst concluded that by the misconduct, the applicant diminished the overall quality of her service below that meriting a general, under honorable conditions or a fully honorable discharge.  
       
       The applicant requested a change to the narrative reason for separation.  However, the narrative reason for separation is governed by specific directives.  The applicant was discharged under the provisions of Chapter 3, paragraph 3-13, AR 600-8-24.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "In Lieu of Trial by Court-Martial," the separation code is "DFS."  
       
       Furthermore, the requested change in reason to a medical separation in accordance with the finding of the PEB is not within the purview of this Board.  The applicant may apply to the Army Board for Correction of Military Records (ABCMR), utilizing the enclosed DD Form 149 regarding this matter.  A DD Form 149 may also be obtained from a Veterans' Service Organization. 
       
       Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28, separation code, entered in block 26, and RE Code, entered in block 27 of the form, will be entered exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes.  The regulation further stipulates that no deviation is authorized.  There is no provision for any other reason to be entered under this regulation.
       The applicant contends that the Deputy Assistant Secretary of the Army relied upon the erroneous recommendation of the General Court-Martial Convening Authority (GCMCA), Fort Drum, not to approve the findings of the Physical Evaluation Board (PEB) directing a medical discharge with 20% disability, but approved the under other than honorable conditions discharge.  The GCMCA, based on the applicant's acts of misconduct recommended a characterization of service of under other than honorable conditions and forwarded his recommendation to HQDA for further action.  He also related that the applicant's pending medical dischage was based on conditions that were not incurred as a result of deployment or combat.  The applicant was initially found fit for duty, and only received her current disability rating after two appeals.
       
       Further, the PEB did not recommend a medical discharge, but informed the applicant that her disability rating was less that 30%.  Soldiers with a disability of less than 30% and with less than 20 years as computed under 10 USC 1208 (active plus RC equivalent service), requires separation from service with disability severance pay.
       
       Moreover, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption.  The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support her contention.  There is no evidence in the record, nor has the applicant provided any evidence, to support her contention that the DASA relied upon the erroneous recommendation by not approving the findings of the Physical Evaluation Board (PEB) directing a medical discharge with 20% disability.
       
       Additionally, 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.  
       
       In view of the foregoing, 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: 6 August 2012         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: Law Office of John L. Calcagni III, Inc
                1 Custom House Street, Suite 300
                Providence, RI 02903

Witnesses/Observers: Witness 

Exhibits Submitted: DD Form 293, dated (110801), with Attorney's Letter consisting of twenty six (26) pages; Listing of Enclosures 1-32 which is incorporated by reference in the previous consideration of the appellant's case by the
Army Discharge Review Board in Docket Number AR20110016155.

VIII.  Board Discussion, Determination, and Recommendation
After carefully examining the applicant's record of service during the term of service under review, hearing her testimony and considering the analyst's recommendation and rationale, the Board determined that the characterization of service was too harsh, and as a result it is inequitable.  The Board found that the overall length and quality of the applicant's service, and the circumstances surrounding the discharge (documented medical condition), mitigated the discrediting entries in her service record.  Accordingly, the Board voted to grant partial relief in the form of an upgrade of the characterization of service to general, under honorable conditions.  However, the Board determined that the reason for discharge was both proper and equitable and voted not to change it.  



        
IX.  Board Decision						
Board Vote:
Character - Change 3    No change 2
Reason -     Change 0    No change 5
(Board member names available upon request)

X.  Board Action Directed
Issue a new DD Form 214  
Change Characterization to: 
Change Reason to: NA
Other: NA
RE Code: 
Grade Restoration:   No   Yes   Grade: NA

XI.  Certification Signature
Approval Authority:




ARCHIE L. DAVIS III
Colonel, U.S. Army
President, Army Discharge Review Board




BONITA E. TROTMAN
Lieutenant Colonel, U. S. Army
Secretary Recorder




















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 AR20120000090
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