IN THE CASE OF:  	Ms.

      BOARD DATE:  	4 April 2014

      CASE NUMBER:  	AR20130008423
___________________________________________________________________________

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 under other than honorable to honorable.

2.  The applicant states, in effect, that she was unjustly discharged.  She contends the charges against her were all false and frivolous.  That the charges against her were dropped and restated on numerous occasions.  She was tired of dealing with the madness that was going on around her and applied for a Chapter 10 discharge which was denied.  She contends that if she was such a deserter, a person that was known to be counted as AWOL, then why she was allowed to go on leave like any other Soldier; she had no restriction.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			29 April 2013
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				16 September 2004
d. Reason/Authority/SPD/RE Code:	  	In Lieu of Trial by Court-Martial, Chapter 10 								KFS, RE-4
e. Unit of assignment:				HHD, 607th MP Bn, Fort Hood, TX
f. Current Enlistment Date/Term:		16 January 2003/OAD, 365 days
g. Current Enlistment Service:		1 year, 8 months, 1 day
h. Total Service:				3 years, 4 months, 8 days
i. Time Lost:					None 
j. Previous Discharges:			USAR-010509-010529/NA											ADT-010530-010915/UNC											USAR-010916-030115/NA											    (Concurrent Service)
k. Highest Grade Achieved:			E-5
l. Military Occupational Specialty:		71L10, Administrative Specialist
m. GT Score:					108
n. Education:					College Graduate
o. Overseas Service:				None
p. Combat Service:				None
q. Decorations/Awards:			NDSM, GWOTSM, ASR
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 United States Army Reserve on 9 May 2001, for a period of         8 years.  She was 27 years old at the time of entry and a college graduate.  She was trained in and awarded military occupational specialty (MOS) 71L, Administrative Specialist.  Her record documents no acts of valor or significant achievement.  She completed 3 years, 4 months, and 8 days of total military service.  The applicant's DD Form 214 under review does not give the applicant credit in block 12e "Total Prior Inactive Service" for her service prior to 16 January 2003, which totals 1 year, 4 months, and 21 days.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s record is void of the specific facts and circumstances concerning the events which led to the discharge from the Army.  However, the applicant submitted two Article 32 investigations; two DD Forms 458, Charge Sheets and the request for discharge in lieu of trial by court-martial pertaining to her separation proceedings.  

2.  Evidence shows an Article 32 investigation was conducted on 13 June 2003 to investigate charges against the applicant to include the offenses of desertion, missing movement, and disrespect.  The decisions of the Article 32 Investigation were not contained in the available documents submitted by the applicant.

3.  Two DD Forms 458, dated 31 October 2003 and 4 December 2003, indicates the applicant was charged with desertion, in that on 4 March 2003, with intent to shirk important service, namely deployment to Kuwait in support of Operation Enduring Freedom, quit her unit and remain absent in desertion until on or about 6 March 2003; on 4 March 2003, through design, missed the movement of her unit, which was required in the course of duty to move; and on 7 May 2003, was disrespectful in language towards master sergeant D.S., a noncommissioned officer, who was in the execution of his office.

4.  Evidence shows a second Article 32 investigation was conducted on 27 April 2004, to investigate charges against the applicant to include the offenses of desertion, missing movement, and disrespect towards a noncommissioned officer.  The Article 32 investigation board convened and the applicant was informed of her rights concerning counsel.  After listening to the testimony of the witnesses and reviewing the evidence; the Article 32 investigating officer recommended trial by special court-martial for violations of article 87 and 91 of the UCMJ.

5.  On 11 May 2004, the applicant consulted with legal counsel and voluntarily requested, in writing, discharge under the provisions of Chapter 10, AR 635-200 in lieu of trial by court-martial.  In this request, the applicant admitted guilt to the offense, or a lesser included offense.  The applicant indicated she understood she could receive an under other than honorable conditions discharge and that the discharge would have a significant effect on eligibility for veteran’s benefits; however, the applicant request a general, under honorable conditions discharge.  The applicant submitted a statement on her own behalf.  The unit commander recommended approval of an UOTHC discharge.  
6.  On 10 June 2004, the separation authority disapproved the applicant's request for discharge in lieu of trial by court-martial under the provision of Chapter 10, AR 635-200.

7.  However, the record does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant’s signature.  

8.  The DD Form 214 indicates that on 16 September 2004, the applicant was discharged under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial with a characterization of service of under other than honorable conditions.  Further, the DD Form 214 shows a Separation Code of KFS i.e., (in lieu of trial by court-martial) with a reentry eligibility (RE) code of 4.

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Discharge Orders 253-0245, dated 9 September 2004.

2.  The applicant's available record does not contain any recorded actions under the UCMJ or counseling statements.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 149, a four page self-authored letter, consisting of a chronological record of the events leading to her discharge, a copy of the investigating officer's report, a copy of her Article 32 Investigation, and a copy of her DD Form 214 for the period of service under review.

POST-SERVICE ACTIVITY: 

The applicant contends that since her discharge she has obtained her diploma in surgical technology and received a BSN in nursing on 14 December 2012.

REGULATORY AUTHORITY:

1.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate.


2.  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. 

3.  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.  

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 military records, the issues and documents submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge. 

2.  The applicant’s record is void of the specific facts and circumstances concerning the events which led to her discharge from the Army.  However, the record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant's signature.  This document identifies the reason and characterization of the discharge.  Barring evidence to the contrary, it appears all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The applicant's contentions were carefully considered.  However, there is insufficient evidence available in the official record to make a determination upon the applicant's quality of service.  Moreover, there is a presumption of regularity in the conduct of governmental affairs.  This presumption is applied in all Army discharge reviews unless there is substantial credible evidence to rebut the presumption.  There is no evidence in the record, nor has the applicant produced any evidence, to support a change to the characterization of service granted.  The applicant’s statements alone do not overcome the presumption of government regularity in this case and the application contains no documentation or further evidence in support of this request for an upgrade of the discharge.  

4.  If the applicant desires a personal appearance, it is her responsibility to meet the burden of proof since the evidence is not available in the official record.  The applicant will need to provide the appropriate documents or other evidence (i.e., discharge packet) sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board's consideration.

5.  Therefore, based on the available evidence and the presumption of government regularity, it appears the reason for discharge and the characterization of service are both proper and equitable, thus recommend the Board deny relief. 



SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Records Review	  Date: 4 April 2014     Location: Washington, DC

Did the Applicant Testify?  No 

Counsel: Mr. Charles W. Gittens, Esquire, PO Box 144, Middletown, VA  22645

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)		AR20130008423



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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