IN THE CASE OF:  	Ms. 

      BOARD DATE:  	23 August 2013

      CASE NUMBER:  	AR20130005387
___________________________________________________________________________

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 that her under other than honorable conditions discharge be upgraded to general, under honorable conditions.

2.  The applicant states, in effect, that almost half of her service was served overseas as an upstanding and invaluable member of her unit and that she received promotions, awards, decorations, and recommendation for her service.  She contends that her ability to serve was impaired by her youth and immaturity.  She also contends that she may have had post traumatic stress disorder as a result of a horrific event that occurred months before entering the military.  She was violently sexually assaulted and then denied of her right to justice due to a lack of evidence.  The lack of support in the matter causes her to have trust issues resulting in her getting out of her small hometown by joining the military.  She is currently drug and alcohol free and employed and is seeking ways to improve herself.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		15 March 2013
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			3 October 2008
d. Reason/Authority/SPD/RE:		Misconduct (Drug Abuse), AR 635-200, Chapter 14, 						paragraph 14-12c(2), JKK, RE-4
e. Unit of assignment:			664th Ord Co, 49th MCB, Fort Hood, TX
f. Current Enlistment Date/Term:	23 February 2006, 4 years
g. Current Enlistment Service:	2 years, 5 months, 6 days
h. Total Service:			2 years, 5 months, 6 days
i. Time Lost:				67 days
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-3	
l. Military Occupational Specialty:	89B10, Ammunition Specialist
m. GT Score:				95
n. Education:				HS Graduate
o. Overseas Service:			Korea
p. Combat Service:			None
q. Decorations/Awards:		AAM, NDSM, GWOTSM, KDSM, ASR, OSR
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		None
u. Prior Board Review:			No



SUMMARY OF SERVICE:		

The applicant enlisted in the Regular Army on 23 February 2006, for a period of 4 years.  She was 21 years old at the time of entry and a high school graduate.  She served in Korea.  She was serving at Fort Hood, TX when separation action was initiated.  The record indicates the applicant was awarded an AAM.  She completed 2 years, 5 months, and 6 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant's service record indicates that on 12 August 2008, the applicant consulted with legal counsel, was advised of the charges preferred against her on 26 June 2008, and offered to plead guilty to all the charges and specification provided the convening authority refer her case to a Summary Court-Martial, and approve no sentence greater than that authorized therein.

2.  Furthermore, as part of the offer to plead guilty at her Summary Court-Martial, the applicant agreed to waive her right to a separation board in subsequent to AR 635-200, Chapter 14 action for misconduct.  She understood that this action would allow the separation authority to approve an under other than honorable conditions characterization of service.

3.  On 5 September 2008, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason of misconduct (serious offense).  Specifically for the following offenses:

a. testing positive for marijuana and cocaine on 18 August 2008

b. being found guilty during a trial by Summary Court-Martial in the possession of       10 grams of marijuana (080626) and being AWOL for a period exceeding 30 days

c. being AWOL 45 days on divers occasions between (080201 and 080805)

4.  Based on the above misconduct, the unit commander recommended an under other than honorable conditions discharge and advised the applicant of her rights.

5.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  The intermediate and senior commanders reviewed the proposed action and recommended approval with an under other than honorable conditions discharge.  

6.  On 18 September 2008, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of under other than honorable conditions.



7.  The applicant was discharged from the Army on 3 October 2008, with a characterization of service of under other than honorable conditions under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200, for misconduct (drug abuse), with a Separation Program Designator code (SPD) of JKK and an RE code of 4. 

8.  The Transition Center (TC) appropriately selected the SPD code, reentry code and reason for the discharge to execute the commander's intent which in this case was to discharge the applicant for wrongfully using an illegal drug.  Army Regulation 635-5-1 provides the authority for Transition Centers (TC) throughout the Army to execute the commanders’ intent and in this case the TC selected the appropriate reentry code, the SPD Code that identified the type of separation and the correct paragraph from AR 635-200 that corresponded with the reason for the applicant’s separation as described in the discharge packet.

9.  The applicant’s record of service indicates 67 days of time lost for being AWOL; 21 days from 5 June 2008 until his return on 26 June 2008, 21 days from 16 July 2008 until her return on 5 August 2008, and 25 days from 9 September 2008 to 3 October 2008 as shown on the DD Form 214.  The return date of 3 October 2008 is the same date the applicant was discharged from the Army.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  There is a positive urinalysis report contained in the record coded; IU (Inspection Unit),       18 August 2008, cocaine and marijuana.

2.  A NG Levels Query, dated 29 August 2008, indicating the applicant was tested on               5 occasions, resulting in a positive test for THC x 5, COC x 4, MDA and MDMA, during the period (080605 and 080818).

3.  Article 15, dated 11 March 2008, for going AWOL between (080201 and 080205) and failure to go at the time prescribed to her appointed place of duty x 3 (080115, 080130, and 080131).  The punishment consisted of reduction to the grade of E-2, forfeiture of $500.00 per month for two months, extra duty for 30 days, and restriction for 45 days (all was suspended), to be automatically remitted unless vacated on or before (080910) (FG). 

4.  SCM, dated 22 August 2008, for desertion x 2 (080527-080604 and 080605-080626) and wrongfully possessing 10 grams of marijuana (080626).  The punishment consisted of reduction to the grade of E-1, forfeiture of $879.00 for one month, and hard labor without confinement for 45 days.

5.  A Killeen Police Department Report, dated 8 October 2007, that indicates the applicant was the subject of an investigation for driving while intoxicated.  

6.  Report of Mental Status Evaluation, dated 12 May 2008, which psychiatrically cleared the applicant for any administrative action deemed appropriate by the command.


EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, certificate for award of the AAM and promotion to private first class, copy of a certificate of participation, completion of a drug education course, certificates of completion (3), certificate of achievements (2), and a certificate of training.

POST-SERVICE ACTIVITY: 

The applicant states she is currently drug and alcohol free and employed.

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, 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 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.  The applicant, by violating the Army's policy not to possess or use illegal drugs, compromised the trust and confidence placed in a Soldier.  The applicant, as a Soldier, had the duty to support and abide by the Army's drug policies.  By abusing illegal drugs, the applicant knowingly risked a military career and diminished the quality of her service below that meriting a general, under honorable conditions discharge.  The applicant’s record of service was marred by an Article 15 for violation of the Uniform Code of Military Justice and a SCM for multiple violations.

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 that almost half of her service was served overseas as an upstanding and invaluable member of her unit and that she received promotions, awards, decorations, and recommendations for her service.  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 and the documented actions under Article 15 of the Uniform Code of Military Justice.

5.  The applicant contends that her ability to serve was impaired by her youth and immaturity.  The record shows the applicant met entrance qualification standards to include age.  There is no evidence to indicate the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

6.  The applicant also contends that she may have had post traumatic stress disorder as a result of a horrific event that occurred months before entering the military.  However, the service record contains no evidence of PTSD diagnosis and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition.  Furthermore, the report of mental status evaluation cleared the applicant for any administrative action deemed appropriate by her command.

7.  Further, 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 this contention.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that she was sexual assaulted.  The applicant’s statements alone does not overcome the government’s presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge.   

8.  Additionally, the record of evidence does not demonstrate that she sought assistance from her command or the numerous Army community services like the Chaplain, Army Community and Family Support Services, Community Counseling Center, and other medical resources available to all Soldiers.  Likewise, she has provided no evidence that she should not be held responsible for her misconduct.

9.  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:  23 August 2013        Location: Washington, DC

Did the Applicant Testify?  NA 

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)		AR20130005387



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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