IN THE CASE OF:  	Ms. 

      BOARD DATE:  	30 October 2013

      CASE NUMBER:  	AR20130008306
___________________________________________________________________________

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 from general, under honorable conditions to honorable as well as, a change to the separation code and narrative reason for discharge.

2.  The applicant states, in effect, she submitted a request for separation due to pregnancy, and was denied.  She contends she was denied due process for a Article 15 and was separated under Chapter 14 for misconduct.  The applicant states she experiences undue hardship when applying for employment due to the stigma of the “JKA” separation code and incorrect discharge received.  She contends that she has completed Everest Institute and is now enrolled in the University of Phoenix Bachelor program pursuing a degree in Information Technology Management.  She states she is a single parent of a child conceived while in the military and is attempting to make a better life for her child and herself.  She contends she is being hampered by an incorrect discharge and separation.  She requests a thorough review of the timeline and issues surrounding her discharge and that her discharge be upgraded to honorable under Chapter 8, pregnancy.
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			29 April 2013
b. Discharge Received:			General, Under Honorable Conditions
c. Date of Discharge:				24 January 2007
d. Reason/Authority/SPD/RE Code:		Pattern of Misconduct/AR 635-200, Chapter
14-12b, JKA, RE-3
e. Unit of assignment:				80th Transportation Detachment, STB (Rear)
(Provisional), Fort Hood, Texas 
f. Current Enlistment Date/Term:		7 July 2005/6 years
g. Current Enlistment Service:		1 year, 6 months, 10 days
h. Total Service:				1 year, 6 months, 10 days
i. Time Lost:					9 days
j. Previous Discharges:			None
k. Highest Grade Achieved:			E-2
l. Military Occupational Specialty:		25B10, Information Systems Operator/Analyst
m. GT Score:					95
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
u. Prior Board Review:				No
SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 7 July 2005 for a period of 6 years.  She was 19 years old at the time of entry and a high school graduate.  There are acts of achievement or valor in the record.  She completed 1 years, 6 months, and 10 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  On a date unknown, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, Chapter 14, paragraph 14-12b, pattern of misconduct. Specifically for:

	a.  Being absent without leave (AWOL) on 31 March 2006 until 2 April 2006.  The applicant received a Company Grade (CG) Article 15 on 2 May 2006.

	b.  Being AWOL on 5 September 2006 until 6 September 2006.

	c.  Being AWOL on 15 November 2006 until 20 November 2006.

2.  Based on the above pattern of misconduct, the commander recommended an general, under honorable conditions discharge.

3.  On 19 December 2006, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and did not submit a statement in her own behalf.  The applicant did submit two letters of support from Ms. M and Ms. C, which state, in effect, the applicant made the wrong choice in joining the Army and she was not an “Army-type person.”  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 an general, under honorable conditions discharge.  

4.  On 5 January 2007, the separation authority approved 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 24 January 2007, under Army Regulation 635-200, Chapter 14-12b, with a general, under honorable conditions discharge, an SPD code of JKA, and an RE code of 3.

6.  The applicant's record shows she was absent without leave (AWOL) during the period of
(060331-060402), (060905), and (061115-061119).  The record indicates the applicant returned to duty on two occasions and the mode of return for the third occasion is not known.





EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Article 15, dated 2 May 2006, for being absent without leave on 31 March 2006 until 
2 April 2006, in violation of Article 86, UCMJ.  The punishment consisted of reduction to E-1 (suspended) to be automatically remitted if not vacated before 2 August 2006, extra duty for 14 days and restriction for 14 days (CG).

2.  Four negative counseling statements dated between 3 April 2006 and 16 November 2006, for failure to report to appointed place of duty and being AWOL on three separate occasions.
      
3  An MP Report dated 20 November 2006, indicates the applicant was AWOL on 
15 November 2006. 

EVIDENCE SUBMITTED BY THE APPLICANT:

 The applicant provided DD From 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 22 April 2013.

POST-SERVICE ACTIVITY: 

The applicant states she completed Everest Institute and is currently enrolled in University of Phoenix Bachelor program pursuing a degree in Information Technology Management.

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 14-12b, 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 an Article 15 for multiple violations of the Uniform Code of Military Justice and four negative counseling statements.

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 her discharge was incorrect because she applied for discharge under Chapter 8, pregnancy, and was denied due process for an Article 15.  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 she was unjustly discriminated.  In fact, the applicant’s Articles 15 and numerous negative counseling statements justify a pattern of misconduct.  The applicant’s statements alone do 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.  The rationale the applicant provided as the basis for what she believes was an unfair discharge is not supportable by the evidence contained in the record and can only be viewed as speculative in nature.


5.  The applicant contends she faces under hardship when applying for employment because of the separation code and incorrect discharge received.  However, 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 14-12b, pattern of misconduct.  Furthermore, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.

6.  The applicant contends that since leaving the Army she has completed Everest Institute and is currently enrolled in a University of Phoenix Bachelor program.  The applicant’s post-service accomplishments have been noted as outlined on the application.  However, in review of the applicant’s entire service record and the reasons for the discharge, it appears that these accomplishments did not overcome the reason for discharge and characterization of service granted.  The Army Discharge Review Board is authorized to consider post-service factors in the re-characterization of a discharge.  However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service.  Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, is considered during Board proceedings.  The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.

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:  Record Review     Date:  30 October 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)		AR20130008306



Page 7 of 7 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1