IN THE CASE OF:  	

      BOARD DATE:  	17 May 2013

      CASE NUMBER:  	AR20130000895
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant's record of service during the period of enlistment under review and considering the Discussion and Recommendation which follows, the Board determined the discharge was both proper and equitable and voted to deny relief.






      
      
      Presiding Officer
      
I certify that herein is recorded the true and complete record of the proceedings of the Department of the Army Discharge Review Board in this case.

THE APPLICANT’S REQUEST AND STATEMENT:

1.  The applicant requests her general, under honorable conditions discharge be upgraded to honorable and a change in the narrative reason for separation.

2.  The applicant states, in effect, that her discharge was based on a legal error.  The original findings of her show cause board were returned by Human Resources Command (HRC) for revision due to lack of supporting detail.  The amended findings were also unsupported by evidence and listed alleged new instances of misconduct which were not cited as specific reasons for elimination.  The fundamental right to notice and an opportunity to present matters of extenuation, mitigation and defense, guaranteed in AR 600-8-24 and AR 15-6, were denied. 

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			31 December 2012
b. Discharge Received:			General, Under Honorable Conditions
c. Date of Discharge:				31 March 2012			
d. Reason/Authority/SPD/RE Code:		Unacceptable Conduct, AR 600-8-24 									paragraph 4-2b, JNC, NA
e. Unit of assignment:				B Co, 21st Combat Support Hospital,								Fort Hood, TX	
f. Current Entry Date/Term:			19 April 2009, 4 years, see ALARACT 								message 311703Z Aug 2007, FY 2007/2008 							Army Nurse Corps Specialty Registered 								Nurse Incentive Special Pay (RNISP) Policy 							Plan and Rates. 		
g. Current Term Net Active Service:		2 years, 11 month, 13 days	
h. Total Service:				10 years, 1 month, 8 days
i. Time Lost:					None
j. Previous Discharges:			USAR-(011121-020222)/NA										RA (020223-060222)/HD											RA (060223-090418)/HD
k. Highest Grade Achieved:			O-3
l. Military Occupational Specialty:		66H 8A, Medical/Surgery Nurse
m. GT Score:					NA
n. Education:					College Graduate
o. Overseas Service:				Hawaii/Southwest Asia
p. Combat Service:				Kuwait (030306-030613)
							Iraq (100109-110108)
q. Decorations/Awards:			ARCOM-4, NDSM, ICM-W/3 CS, GWOTEM 								GWOTSM, ASR, OSR-2, MUC
r. Administrative Separation Board: 		No
s. Performance Ratings:			Yes
t. Counseling Statements:			None
u. Prior Board Review:				No
SUMMARY OF SERVICE:		
	
The applicant was commissioned as a second lieutenant on 21 November 2001.  She was 23 years old at the time and a college graduate.  She attended the medical officer basic course, and was assigned to Fort Hood, TX, as a medical/surgery nurse.  She earned four ARCOMs and completed 10 years, 1 month, and 8 days of active duty service.  Her record also indicates she completed two tours of combat duty.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record shows that on 20 April 2011, the applicant was notified of initiation of elimination proceedings under the provisions of Chapter 4, paragraph 4-2b(5) and (8), AR 600-8-24, by reason of personal misconduct and conduct unbecoming an officer for the following offenses:

    	a. possessing, distributing pornographic materials and engaging in an adulterous relationship (101223).

    	b. using her position as a flight nurse to travel to Balad to meet CW3 S, with whom she was having the adulterous affair, and abandoning a patient she was accompanying.  

    	c. lying about the inappropriate relationship when questioned during an investigation into the patient abandonment.

2.  The applicant was directed to show cause for retention in the Army.  She was advised that she could submit a sworn or unsworn statement, submit a rebuttal statement, resign in lieu of elimination, apply for retirement in lieu of elimination, or request an appearance before a Board of Inquiry (BOI).  

3.  On 15 August 2011, the applicant appeared with counsel before a BOI.  The Board found the applicant committed an act of personal misconduct and engaged in conduct unbecoming an officer.  The Board recommended separation with a general, under honorable conditions discharge.  On 15 December 2011, the Army Review Boards Agency requested the BOI amend its findings in order to provide specific relevant conduct to support the basis for separation.

4.  On 15 January 2012, the BOI reconvened and provided the amended findings.  The BOI’s recommendation remained the same; to discharge the applicant with a general, under honorable conditions discharge.  On 20 January 2012, the applicant submitted rebuttal matters to the amended findings by the BOI.  On 3 March 2012, the Commander, Headquarters          III Corps and Fort Hood, approved the findings and recommendations of the BOI and recommended the applicant’s discharge with a general, under honorable conditions characterization of service.

5.  On 13 March 2012, the Army Board of Review recommended the applicant’s elimination from the Army with issuance of a general, under honorable conditions discharge.  

6.  On 16 March 2012, the Deputy Assistant Secretary (Army Review Boards) approved the recommendation of the Army Board of Review and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.   

7.  The applicant was discharged from the Army on 31 March 2012, with a characterization of service of general, under honorable conditions.

8.  The applicant’s service record does not contain any evidence of unauthorized absences or time lost.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  The record contains 12 Officer Evaluations Reports (OERs), covering the periods of            6 January 2005 through 30 March 2012.  The applicant was rated “Best Qualified,”  
(10 OERs), “Fully Qualified (1 OER),” and “Other” on the last OER covering the period              19 December 2011 through 30 March 2012.    
 
2.  A General Officer Memorandum of Reprimand (GOMOR), dated 23 December 2010, for possessing and distributing pornographic materials and engaging in an adulterous relationship. 

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided an online application, dated 20 December 2012; Memorandum, Board of Inquiry, three pages, dated 25 January 2012; and a DD Form 214, dated 31 March 2012.

POST-SERVICE ACTIVITY: 

The applicant did not provide any.  

REGULATORY AUTHORITY:

1.  Army Regulation (AR) 600-8-24, Officer Transfers and Discharges, sets forth the basic authority for the separation of commissioned and warrant officers.  Chapter 4 outlines the policy and procedure for the elimination of officers from the active Army for substandard performance of duty, misconduct, moral or professional dereliction, and in the interest of national security.

2.  AR 600-8-24, paragraph 1-22a, provides that an officer will normally receive an honorable characterization of service when the quality of the officer’s service has met the standards of acceptable conduct and performance of duty.  An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.

3.  A general under honorable conditions characterization of service will normally be issued to an officer when the officer’s military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A separation under honorable conditions will normally be appropriate when an officer submits an unqualified resignation or a request for relief from active duty under circumstances involving misconduct which renders the officer unsuitable for further service, unless an under other than honorable conditions separation is appropriate.

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of the characterization of her discharge was carefully considered.  However, after examining the applicant’s record of service, the documents and the issue submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge or a change to the narrative reason for separation.    

2.  The record confirms 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 Army officers.  It brought discredit on the Army and was prejudicial to good order and discipline.  By her misconduct, the applicant diminished the quality of her service below that meriting an honorable discharge.  

3.  The applicant provided no corroborating evidence demonstrating that either the command's action was erroneous or that her service mitigated the unacceptable conduct or poor duty performance.  Further, the applicant’s record contains no evidence of arbitrary or capricious actions by the command.  It appears that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

4.  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 4, paragraph 4-2b, AR 600-8-24.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "Unacceptable Conduct," and the separation code is "JNC."  
      
5.  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 and separation code, entered in block 26 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 was no provision for any other reason to be entered under this regulation.   deviation is authorized.  There is no provision for any other reason to be entered under this regulation. 

6.  The applicant contends her discharge was based on a legal error; the amended findings were also unsupported by evidence and listed alleged new instances of misconduct which were not cited as specific reasons for elimination; the fundamental right to notice and an opportunity to present matters of extenuation, mitigation and defense, guaranteed in 
AR 600-8-24 and AR 15-6, were denied.  However, 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 these contentions.  There is no evidence in the record, nor has the applicant produced any evidence to support these contentions that she was denied due process in the separation proceedings.

7.  The records show the proper discharge and separation authority procedures were followed in this case.  

8.  Therefore, the reason for discharge and characterization of service being both proper and equitable, recommend the Board deny relief.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Record Review      Date:  17 May 2013            Location:  Washington, DC

Did the Applicant Testify:  No 

Counsel:  NA

Witnesses/Observers:  NA 

Board Vote:
Character Change:  0	No Change:  5
Reason Change:	0	No Change:  5
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:			No
Change Characterization to:		No Change
Change Reason to:				No Change
Change Authority for Separation:		No Change
Change RE Code to:			No Change
Grade Restoration to:			NA
Other:						NA





Legend:
AMHRR - Army Military Human Resource Record	FG - Field Grade	IADT – Initial Active Duty Training	 	RE - Reentry
AWOL - Absent Without Leave	GD - General Discharge	NA - Not applicable	SCM- Summary Court Martial
BCD - Bad Conduct Discharge	HS - High School	NIF - Not in File	SPCM - Special Court Martial
CG - Company Grade Article 15	HD - Honorable Discharge	OAD - Ordered to Active Duty	UNC - Uncharacterized Discharge  
CID - Criminal investigation Department	MP – Military Police	OMPF - Official Military Personnel File	UOTHC - Under Other Than                           			               Honorable Conditions


ADRB Case Report and Directive (cont)		AR20130000895



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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