IN THE CASE OF:  	Ms.

      BOARD DATE:  	25 September 2013

      CASE NUMBER:  	AR20130004984
___________________________________________________________________________

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 discharge characterization from general, under honorable conditions to fully honorable.

2.  The applicant states, in effect, that she is requesting an upgrade due to the circumstances surrounding her discharge.  She was asked to attend treatment for PTSD and substance abuse at the Military Wellness Program in Holliswood, New York and to return to duty after completion.  However, after successfully completing the program she was immediately discharged from the military for charges that she had previously been punished under UCMJ.  Her commander had promised that after treatment and a change of her behavior, she would be allowed to remain in the military and serve the remaining time of her contract.  But when the unit came down on orders to deploy to Afghanistan, she was identified as non-deployable due her psychological profile, was rushed to take a physical and discharged.  She admits that she made mistakes; however, at 20 years of age the military was her career of choice and her dream.  She was under a lot of stress particularly about after being blamed for an incident in which another Soldier almost “hacked” his arm off.  The Soldier mentioned above left the military with an honorable discharge under medical conditions, received benefits and disability.  She was discharged without considering her previous services to her country.  She served with distinction in Iraq and was awarded an AAM.  Her life after the military continues to be a nightmare.  She has been going from one VA hospital program to the next and taking medications that sometimes take away her desire to live.  She is unable to go to school because she does not qualify for other VA services.  Lastly, she is faced with a series of diagnosis including Borderline Personality Disorder, Bipolar Disorders and other problems she never had before she went into the military.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		7 March 2013
b. Discharge Received:		General, Under Honorable Conditions 
c. Date of Discharge:			28 December 2009
d. Reason/Authority/SPD/RE:		Pattern of Misconduct, AR 635-200, Chapter 14-12b, 						JKA, RE-3
e. Unit of assignment:			HHC, 10th Brigade Support Battalion, 1st Brigade 						Company Team, 10th Mountain Division (Light 							Infantry), Fort Drum, NY
f. Current Enlistment Date/Term:	20 September 2007, 4 years
g. Current Enlistment Service:	2 years, 3 months, 9 days
h. Total Service:			2 years, 3 months, 9 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	92Y10, Unit Supply Specialist
m. GT Score:				105
n. Education:				HS Graduate
o. Overseas Service:			SWA
p. Combat Service:			Iraq (080623-081015)
q. Decorations/Awards:		AAM, NDSM, ICM-w/CS, GWOTSM, ASR
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		Yes	
u. Prior Board Review:			No

SUMMARY OF SERVICE:		
	
The applicant's record shows she enlisted in the Regular Army on 20 September 2007 for a period of 4 years.  She was 18 years old at the time and a high school graduate.  The applicant’s record shows she was awarded an AAM.  When her discharge proceedings were initiated, she was serving at Fort Drum, NY.

SEPARATION FACTS AND CIRCUMSTANCES

1.  On 22 December 2009, the unit commander notified the applicant of his intent to process her for separation under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of pattern of misconduct; specifically for:

	a.  Wrongfully consuming alcohol while under the age of 21 and wrongfully using provoking words towards another Soldier.  During this same incident, she also unlawfully struck and kicked that same Soldier in his face and body with her closed fist and her feet (090907).

	b.  Wrongfully consuming alcohol while under the age of 21.  As a result of her wrongful previous overindulgence in intoxicating liquor, she was incapacitated for the proper performance of her duties and thus failed to report to her appointed place of duty at the prescribed time (091005). 

2.  Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge and informed the applicant of her rights.

3.  On 22 December 2009, the applicant waived legal counsel, was advised of the impact of the discharge action, and did not submit a statement on her 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 of a general, under honorable conditions discharge.  

4.  On 23 December 2009, the separation authority, waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.  



5.  The applicant was separated on 28 December 2009, under the provisions of Army Regulation 635-200, Chapter 14-12b for a Pattern of Misconduct, with a general, under honorable conditions discharge, an SPD code of JKA and an RE code of 3.

6.  The applicant’s record does not show any time lost.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD

1.  The applicant's disciplinary record includes her acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), as follows:

	a.  On 23 September 2009, for wrongfully consuming alcohol while under the age of 21,  wrongfully using provoking words towards another Soldier and unlawfully struck a Soldier in the face with a closed fist and in the body with her feet (090907).  Her punishment consisted of forfeiture of reduction to E-1, forfeiture of pay in the amount of $699.00 pay, 45 days of extra duty and restriction, and an oral reprimand (FG).

	b.  On 22 October 2009, for failing to report, wrongfully consuming alcohol while under the age of 21, and as a result of her wrongful previous overindulgence in intoxicating liquor, she was incapacitated for the proper performance of her duties (091005).  Her punishment consisted of reduction to E-1, forfeiture of pay in the amount of $699.00 pay per month for two months, 45 days of extra duty and restriction, and an oral reprimand (FG).

2.  Several counseling statements, some of which were negative in nature for the period of    16 December 2008 through 5 October 2009, for offenses related to underage drinking, failing to report, assaulting another Soldier, wrongfully using provoking words, and being drunk on duty.  

3.  An MP Report, dated 6 September 2009.  The applicant was the subject of an investigation for simple assault.

EVIDENCE SUBMITTED BY THE APPLICANT 

DD Form 293; DD Form 214, and VA documents.

POST-SERVICE ACTIVITY: 

Currently receiving treatment from the VA.

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 her military records, the documents, and the issues submitted with the application, there are insufficient 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 repeated incidents of misconduct, the applicant diminished the quality of her service below that meriting a fully honorable discharge.  The applicant’s service was marred by two Articles 15 for multiple violations of the Uniform Code of Military Justice and several negative counseling statements.

3.  The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that his service mitigated the misconduct or poor duty performance.  

4.  The applicant contends that she had good service, served with distinction in Iraq and was awarded an AAM.  The applicant’s service accomplishments and the quality of her service prior to the incidents that caused the initiation of discharge proceeding were carefully considered.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge as shown by the repeated incidents of misconduct or by the multiple negative counseling statements and the documented actions under Article 15 of the Uniform Code of Military Justice.

5.  The applicant contends her commander had promised not to discharge her after treatment.    However, AR 635-200, paragraph 1-16d(2), entitled counseling and rehabilitative requirements states, 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.  After reviewing the applicant’s discharge packet, the separation authority properly waived the rehabilitative requirements.  Moreover, the evidence of record shows the command attempted to assist the applicant in performing and conducting herself to Army standards by providing counseling and by the imposition of non-judicial punishment.  The applicant failed to respond appropriately to these efforts.

6.  The applicant contends that another Soldier with similar offenses was discharged with an honorable discharge.  However, the method in which another Soldier’s case was handled is not relevant to the applicant’s case.  Applicable regulations state that each case must be decided on an individual basis considering the unique facts and circumstances of that particular case.

7.  The applicant contends she was diagnosed with PTSD while serving on active duty; however, the service record contains no evidence of Post-Traumatic Stress Disorder diagnosis and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition.  In fact her record shows that on 22 October 2009, she underwent a mental status evaluation and was diagnosed with Axis I: Depressive disorder and alcohol abuse.  The evaluation determined this medical condition did not overcome the reason for discharge and characterization of service granted.  The evaluation shows that, the applicant was mentally responsible, with thought content as clear, and was able to recognize right from wrong.  It appears the applicant’s chain of command determined that she knew the difference between what was right and wrong as indicated by the mental status evaluation.

8.  The applicant contends she is unable to go to school because she does not qualify for other VA services.  She is faced with several medical issues she never had prior to the military.
The applicant’s contentions were noted; however, eligibility for Veteran's benefits to include medical and 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 continue to seek treatment through the Department of Veterans Affairs.

9.  The record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The character of the applicant’s discharge is commensurate with her overall service record.  

10.  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:  25 September 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)		AR20130004984



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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