IN THE CASE OF:  	Ms.

      BOARD DATE:  	4 September 2013

      CASE NUMBER:  	AR20130005448
___________________________________________________________________________

Board Determination and Directed Action

1.  After carefully examining the applicant’s record of service during the period of enlistment under review and the Discussion and Recommendation that follows, the Board determined that the characterization of service was both proper and equitable and voted to deny relief.  

2.  Further, the Board voted to change the applicant’s reason for discharge, authority, separation code, and reentry code on the basis of equity as it had been approved by the separation authority.  The Board directed the DD Form 214 be reissued with the following changes:

      a. block 25, separation authority changed to AR 635-200, paragraph 14-12b
      
      b. block 26, separation code changed to JKA
      
      c. block 28, narrative reason for separation changed to Pattern of Misconduct 

3.  Except for the foregoing modifications, the Board determined the discharge was both proper and equitable.



      
      
      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 from general, under honorable conditions to honorable.

2.  The applicant states, in effect, that she would like an upgrade of her discharge based on her good service to include her deployment.  She contends she was discharged as a result of a relationship with a married man after her return from deployment.  Because of the relationship, she was given an Article 15 which reduced her in grade to E-1 and gave her 45 days of extra duty.  After serving her punishment she was discharge from the military.  She contends the other service member involved in the relationship was a higher ranking individual who did not lose any rank nor was he discharged from the military.  She realizes that she made a terrible mistake in what she did, because she was not officially divorced but separated in an agreement between her and her husband.  She believes she was and excellent Soldier while in the military, she won Soldier of the month, Soldier of the Deployment, and received an ARCOM and AAM during her deployment.  She was always putting the mission first and always did her job to the best of her ability.  She believes her characterization of service should be upgraded.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		18 March 2013
b. Discharge received:			General, Under Honorable Conditions
c. Date of Discharge:			10 May 2011
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200, 							Chapter 14, paragraph 14-12c, JKQ, RE-3
e. Unit of assignment:			306st MI AEB Rear, Fort Hood, TX
f. Current Enlistment Date/Term:	20 April 2010, 3 years
g. Current Enlistment Service:	1 year, 1 month 8 days
h. Total Service:			2 years, 11 months, 13 days
i. Time Lost:				None
j. Previous Discharges:		RA-080528-100419/HD
k. Highest Grade Achieved:		E-4
l.  Military Occupational Specialty:	35G10, Imagery Analyst
m. GT Score:				117
n. Education:				HS Graduate
o. Overseas Service:			Southwest Asia 
p. Combat Service:			Afghanistan (090726-100708)
q. Decorations/Awards:		ARCOM, AAM, ACM-w/CS, NDSM, GWOTSM, 						ASR, OSR, NATO AFGHANISTAN SERVICE MEDAL 
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 28 May 2008, for a period of 3 years and         34 weeks.  On 20 April 2010, she reenlisted for a period of 3 years.  She was 20 years old at the time of reenlistment and a high school graduate.  Her service record reflects she served a period of combat in Afghanistan, achieved the rank of SPC/E-4, and was awarded an ARCOM and an AAM.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 15 April 2011, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, by reason of pattern of misconduct.  Specifically for the following offenses:

a. Wrongfully having sexual intercourse with a man not her husband

b. making a false official statement to a commissioned officer

c. disobeying a lawful order

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

3.  On 20 April 2011, the applicant waived her right to consult with legal counsel, was advised of the impact of the discharge action and did not submit a statement on her own behalf.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  

4.  On 26 April 2011, 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 discharged from the Army on 10 May 2011, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct (serious offense), with a Separation Program Designator code (SPD) of JKQ and an RE code of 3. 

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






EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  A copy of a military protective order, dated 16 July 2010.

2.  A negative counseling statement dated 1 March 2011, notifying the applicant of the results of an Article 15-6 investigation that was completed against her.

3.  An Article 15, imposed on 10 March 2011, for wrongfully having sexual intercourse with a MSG J.H., a man that was not her husband (100716) and disobeying a lawful order from a commissioned officer on (100824).  The punishment consisted of reduction to the grade of E-1 and extra duty for 45 days (FG). 

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided an online application.

POST-SERVICE ACTIVITY: 

None were provided with the application.

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 "JKA" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, and pattern of misconduct.

5.  The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKA" 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, 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 pattern of misconduct, the applicant diminished the quality of her service below that meriting a fully honorable discharge.  The applicant’s record of service was marred by the Article 15 for multiple violations of 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 applicant contends the punishment she received was too severe.  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 this issue.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that her discharge was too severe.  In fact, the applicant’s Article 15 for multiple offenses justifies a pattern of misconduct.  

5.  The applicant contends that she had good service which included a deployment to Afghanistan, winning Soldier of the month and receiving an ARCOM and AAM while deployed.  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 incidents of misconduct or by the negative counseling statement, and the documented action under Article 15 of the Uniform Code of Military Justice.

6.  The applicant contends that the other service member involved in the relationship did not lose any rank, nor was he discharged from the military.  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 states she has a hard time finding good jobs.  However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.

8.  Additionally, the service record indicates that someone in the discharge process erroneously entered the reason for separation as misconduct (serious offense), authority as AR 635-200, paragraph 14-12c, and SPD code of JKQ.  However, the separation authority approved the discharge under the provisions of AR 635-200, paragraph 14-12b, with a pattern of misconduct.

9.  Therefore, recommend to the Board that the following changes be made:  
      
      a. change block 25, separation authority to AR 635-200, paragraph 14-12b
      
      b. change block 26, separation code to JKA
      
      c. change block 28, narrative reason for separation to Pattern of Misconduct    

10.  Except for the modifications as stated above the discharge was both proper and equitable, recommend the Board deny relief.





















SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Records Review      Date:  4 September 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:		Yes
Change Characterization to:	No Change
Change Reason to:			Pattern of Misconduct
Change Authority for Separation:	AR 635-200, Chapter 14, Paragraph 14-12b
Change RE Code to:		NA
Grade Restoration to:		NA
Other:					Separation Designator Program (SPD) code JKA



















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)		AR20130005448



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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