IN THE CASE OF:  	Ms. 

      BOARD DATE:  	28 June 2013

      CASE NUMBER:  	AR20130002735
___________________________________________________________________________

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 an upgrade of her general, under honorable conditions discharge to honorable and a change to the narrative reason for discharge.

2.  The applicant states, in effect, that she should have been medically retired rather than given a chapter 14.  She was not allowed to complete the medical board process.  The VA has rated her as bi-polar with a 70% disability.  She would also like her rank restored to E-3 and she would like to recoup her pay that was forfeited under the Article 15 proceedings. 
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			4 February 2013
b. Discharge Received:			General, Under Honorable Conditions
c. Date of Discharge:				6 July 2010
d. Reason/Authority/SPD/RE Code:		Misconduct, (Serious Offense), AR 635-200, 								Chapter 14-12c, JKQ, RE-3
e. Unit of assignment:				1st Air Cavalry Brigade (Rear) (Provisional), 							1st Cavalry Division, Fort Hood, TX		
f. Current Enlistment Date/Term:		1 November 2007, 5 years
g. Current Enlistment Service:		1 year, 9 months, 21 days
h. Total Service:				1 year, 9 months, 21 days
i. Time Lost:					315 days
j. Previous Discharges:			None
k. Highest Grade Achieved:			E-3
l. Military Occupational Specialty:		92A10, Automated Logistical Specialist
m. GT Score:					NIF
n. Education:					HS Graduate
o. Overseas Service:				SWA
p. Combat Service:				Iraq (090427-100427)
q. Decorations/Awards:			NDSM, ICM-CS, ASR, OSR
r. Administrative Separation Board: 		No
s. Performance Ratings:			None
t. Counseling Statements:			Yes
u. Prior Board Review:				No
SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 1 November 2007 for a period of 5 years.  She was 37 years old at the time of entry and a high school graduate.  She served in Iraq and completed 1 year, 9 months, and 21 days of active duty service.


SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 28 October 2009, the commander notified the applicant of initiation of separation action under Army Regulation 635-200, Chapter 14, Paragraph 14-12c.  Specifically for:

	a. receiving a Field Grade Article 15 on (090603) for one violation                                  	of AWOL (080518-090302)
	b.  being counseled on (090810) for leaving her place of duty and disrespect to a senior 	noncommissioned officer
	c.  being counseled on (090603) for disrespect towards a noncommissioned officer and 	warrant officer.

2.  Based on the above misconduct, the commander recommended a general, under honorable conditions discharge.

3.  On 25 November 2009, 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 Army and waiver of further rehabilitative efforts.  The intermediate commander reviewed the proposed action and recommended approval with a general, under honorable conditions discharge.  

4.  The separation authority determined that the applicant’s medical condition was not a direct or substantial contributing cause of the misconduct and therefore, the case would not be processed through medical disability channels.  The separation authority approved and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.  

5.  The applicant was separated on 6 July 2010, under Army Regulation 635-200, Chapter    14-12c, with a general, under honorable conditions discharge, an SPD code of JKQ, and an RE code of 3.  

6.  The applicant's record shows she was absent without leave (AWOL) during the period       17 April 2008 through 1 March 2009.  The record indicates she surrendered and returned to military control.  The dates in the case separation files indicate the applicant’s period of AWOL started 18 May 2008 and the applicant’s DD Form 214 indicates she was AWOL beginning     17 April 2008.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  An Article 15, dated 3 July 2009, AWOL (080518-090302).  The punishment consisted of reduction to the grade of E-1, forfeiture of $749 pay per month for two months, 45 days of extra duty and restriction, (FG). 

2.  Nine negative counseling statements, dated between 2 June 2009 and 9 August 2009 for separation discharge proceedings, disrespect towards a warrant officer, battle buddy policy, restriction limitations, disrespect towards a senior NCO, and chapter counseling.
3.  Report of Mental Status Evaluation, MEDCOM Form 699-R, dated 21 September 2009, indicates the applicant had the mental capacity to understand and participate in board or other administrative proceedings, and was mentally responsible.  

EVIDENCE SUBMITTED BY THE APPLICANT:

 The applicant provided a DD Form 293, physical profile, Medical Evaluation Board Proceedings, various documents from the VA, and a DD Form 214.

POST-SERVICE ACTIVITY: 

None were provided by the applicant.

REGULATORY AUTHORITY:

1. 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 being absent 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.   

2.  Army Regulation 635-200, paragraph 3-7a, 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.  Whenever there is doubt, it is to be resolved in favor of the individual.

3.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

4.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It identifies the SPD code of "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, misconduct (drug abuse).

5.  The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKQ" will be assigned an RE Code of 3.
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, her military records, the documents and the issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge.  

2.  The record confirms that 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.  It brought discredit on the Army, and was prejudicial to good order and discipline.  By the misconduct, the applicant diminished the quality her service below that meriting a fully honorable discharge.  The applicant’s record of service was marred by an Article 15 for violating the Uniform Code of Military Justice.

3.  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.  

4.  The fact the Veterans Administration has granted the applicant service connection for medical conditions the applicant suffered while on active duty does not support a conclusion that these conditions rendered the applicant incapable of understanding right from wrong or unfit to participate in her discharge process.  The available medical evidence in the record indicates that on 21 September 2009, the applicant underwent a mental status evaluation and had the mental capacity to understand and participate in board or other administrative proceedings, and was mentally responsible.  

5. The applicant contends she should have been medically discharged; however, Army Regulation 635-200, in pertinent part, stipulates that commanders will not take action to separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct.  

6.  The applicant contends the narrative reason for the discharge should be changed because of her medical issues.  However, the applicant was separated under the provisions of Chapter 14, paragraph 14-12c, AR 635-200 with a general, under honorable conditions discharge.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Serious Offense)," and the separation code is "JKQ."  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 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.  

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

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

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review	Date:  28 June 2013         Location: Washington, DC

Did the Applicant Testify?  No 

Counsel: None

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:	NA
Change RE Code to:		NA
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)		AR20130002735



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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