IN THE CASE OF:  	Mr. 

      BOARD DATE:  	24 July 2013

      CASE NUMBER:  	AR20130003353
___________________________________________________________________________

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.     

2.  The applicant states, in effect, that her discharge is improper because it was based on one isolated during her enlistment with no other adverse action.  She was wrongfully accused of something when in actuality she was the victim.  During her AIT training she was raped.  Instead of treating her as such she was charged with fraternization.  She has since been hospitalized for depression, anxiety, suicidal thoughts and attempted suicide.  She is now divorced from her spouse due to the trauma.  She is not able to receive her benefits due to her lack of time served in the military and or discharge.  She feels she needs and deserves treatment for the sake of her children.  She also feels that her discharge should be changed because she was hurt.       
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		14 February 2013	
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			23 July 2010	
d. Reason/Authority/SPD/RE Code:	Misconduct, (Serious Offense), AR 635-200, 14-12c   							JKQ, RE-3	
e. Unit of assignment:			Company B, 16th Ordnance Battalion                 						61st Ordnance Brigade, Fort Lee, VA 			
f. Current Enlistment Date/Term:	6 October 2009, 4 years
g. Current Enlistment Service:	9 months, 18 days
h. Total Service:			9 months, 18 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-1
l. Military Occupational Specialty:	None
m. GT Score:				88
n. Education:				HS Graduate
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		None
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		Yes (noted in separation files)
u. Prior Board Review:			No


SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 6 October 2009 for a period of 4 years. She was      19 years old at the time of entry, a high school graduate, and completed 9 months, and 18 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 1 July 2010, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, Chapter 14-12c, Commission of Serious Offenses. Specifically for:

	a.  on divers occasions between 2 April 2010 and 15 June 2010, failed to obey a lawful 	order by not signing out on the sick-call log at Company B, 16th Ordnance Battalion 	when going to sick-call;

	b.  failed to obey a lawful order by wrongfully failing to lock her wall locker with a key 	type lock on 19 June 2010;

	c.  feigned illnesses on divers occasions between 2 April 2010 and 15 June 2010, for 	the purpose of avoiding her duty, as an Initial Entry Training Soldier, to attend Advanced 	Individual Training;

	d.  for purpose of consideration of her characterization of service, the following was 	considered;

	(1)  being counseled for sleeping in the day room on 3 June 2010; because sleeping 	during the standard duty day, between 0445 hours and 1700 hours, is not authorized for 	AIT/IET or Prior Service Soldiers unless directed by a physician or attending night 	classes;

	(2)  being counseled twice on 16 June 2010 for failing to go at the time prescribed to her 	appointed place duty on 15 June 2010;

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

3.  On 1 July 2010, the applicant acknowledged receipt of the commander’s notice of separation action and indicated that she had been the victim of a sexual assault and had filed an unrestricted report within the past 24 months.  The applicant also indicated that the separation action was not a direct or indirect result of the sexual assault itself or of the filing of the unrestricted report.

4.  On 6 July 2010, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and indicated she would submit a statement on her behalf (NIF).  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.  

5.  On 13 July 2010, the separation authority and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.  

6.  The applicant was separated on 23 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.               

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  The available record does not contain any actions under UCMJ; however, the commander’s report notes an Article 15 action and multiple negative counseling statements.

2.  A memorandum for record, dated 15 July 2010, which indicates the applicant initially reported being sexually assaulted as a child.  

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293 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.

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, 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.  

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 applicant contends she was raped while in training and was subsequently discharged for fraternization; however, the analyst noted that the applicant initially reported she was sexually assaulted during her childhood as noted in a memorandum for record from the unit commander, dated 15 July 2010.  

5.  Additionally, the applicant indicated on her acknowledgement memorandum, that she had been sexually assaulted within the past 24 months; however, the separation action was not a direct or indirect result of the sexual assault.  There is no indication that an investigation was conducted concerning the unrestricted report that the applicant indicates she filed.  The unit commander on a subsequent memorandum for record indicated the applicant told the first sergeant she had been sexually assaulted during her childhood.

6.  The applicant contends that an upgrade of her discharge would allow VA benefits.  However, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.

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:  24 July 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)		AR20130003353



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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