IN THE CASE OF:  	

      BOARD DATE:  	13 November 2013

      CASE NUMBER:  	AR20130008498
___________________________________________________________________________

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.  Counsel requests on behalf of the applicant an upgrade of her discharge from uncharacterized to honorable.

2.  Counsel states, in effect, the applicant’s record of service is inconsistent with her discharge.  He contends the applicant’s service in the Army National Guard (ARNG) was honorable, there is no evidence she was a non-performing Soldier, and her conduct was that expected of Soldiers.  He states the applicant appealed her discharge to the Oklahoma National Guard (OANG).  He contends the applicant’s characterization of service should be based on the quality of her service while a member of the ARNG.  He states that service characterization affects the Soldier’s eligibility for veteran’s benefits, reentry into military service, and acceptability for employment.
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			14 March 2013
b. Discharge Received:			Uncharacterized
c. Date of Discharge:				10 January 2002
d. Reason/Authority/SPD/RE Code:		Pregnancy, NGR 600-200, Chapter 8-26b(5)
PC, RE-3
e. Unit of assignment:				B Company, 120th Engineer Battalion, 
Oklahoma Army National Guard, Wagoner, OK
f. Current Enlistment Date/Term:		15 May 2000/6 years
g. Current Enlistment Service:		1 year, 7 months, 26 days
h. Total Service:				1 year, 7 months, 26 days
i. Time Lost:					None
j. Previous Discharges:			ARNG/000515-000528/NA
RA/000529-000811/IADT
ARNG/000812-010514/NA
ARNG/010515-020110/NA
k. Highest Grade Achieved:			E-3
l. Military Occupational Specialty:		91B10, Wheeled Vehicle Mechanic
m. GT Score:					87
n. Education:					Did not Complete 11th Grade
o. Overseas Service:				None
p. Combat Service:				None
q. Decorations/Awards:			OGCR
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 Army National Guard on 15 May 2000 for a period of 6 years.  She was 17 years old at the time of entry and had not completed high school.  She was on a split option and attended basic training from 29 May 2000 until 11 August 2000.  There is no record she was ever awarded a Military Occupational Specialty (MOS), however her record does not document any acts of valor or significant achievement.  She earned the Oklahoma Good Conduct Ribbon (OGCR) and completed 1 year, 7 months, and 26 days of military service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record does not contain the specific facts and circumstances concerning the applicant’s discharge, due to pregnancy, from the Oklahoma Army National Guard.  The applicant did on 9 September 2001; make the election to be transferred to the Individual Ready Reserve (IRR).
 
2.  The available evidence indicates that on 20 February 2002, Department of the Army Oklahoma Army National Guard, Oklahoma City, Oklahoma, Orders 51-76, discharged the applicant from the Army National Guard and as a Reserve of the Army, effective date 
10 January 2002, with character of service described as uncharacterized.  

3.  The record contains a properly constituted NGB Form 22 (Report of Separation and Record of Service).  It indicates the applicant was discharged under the provisions of paragraph 
8-26b(5), NGR 600-200, by reason of pregnancy with a reenlistment eligibility (RE) code of 3.  

4.  On 23 January 2013, the OANG Joint Force Headquarters, Staff Judge Advocate, reviewed the applicant’s request for an upgrade of her discharge and found the discharge from the ARNG to be proper and equitable.  A change to the reentry code was granted and the applicant’s reentry code was changed from “RE-3” to “RE-2” to allow the applicant to reenlist without a waiver.  However, there was no change to the characterization of discharge.

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  The applicant’s record indicates she was counseled on 5 August 2000, for failure to complete 72 consecutive hours in Victory Forge and for failure to participate in foot March 6.

2.  There was no other derogatory information in the applicant’s record.
      
EVIDENCE SUBMITTED BY THE APPLICANT:

 Counsel provided DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), a memorandum from her counsel, Mr. M, dated 
21 December 2012, a letter from the Staff Judge Advocate, OANG dated 23 January 2013, a letter from the Case Management Division, Army Review Board Agency (ARBA), dated 
22 April 2013, a copy of the applicant’s medical and service record. 

POST-SERVICE ACTIVITY: 

None provided with the application.

REGULATORY AUTHORITY:

1.  National Guard Regulation (NGR) 600-200 and Army Regulation 135-178 govern procedures covering enlisted personnel management of the Army National Guard.  Chapter 1 of AR 135-178, covers, in pertinent part, reasons for discharge and separation of enlisted personnel from the State Army Reserve National Guard.  

2.  AR 135-178, paragraph 1-22, provides that the mobilization asset transfer program (MATP) applies only to Army National Guard of the United States (ARNGUS) and United States Army Reserve (USAR) soldier who are subject to separation processing under this regulation or for the reasons in NGR 600-200 corresponding to the listed reasons which include pregnancy and who meet the eligibility criteria of paragraph 1-23.

3.  AR 135-178, paragraph 1-23, provides that state military authorities are required to follow the procedures of NGR 600-200 in processing ARNGUS Soldiers for discharge from the ARNGUS prior to expiration of their terms of service.  ARNGUS Soldiers who are discharged from the ARNG per NGR 600-200 become members of the IRR unless they are concurrently discharged from the ARNGUS and the Reserve of the Army under the procedures set forth in this regulation.  

4.  AR 135-178, paragraph 1-24, provides that a Soldier is ineligible for retention in, or transfer/reassignment to the IRR or Standby Reserve (Active List) and will be separated from military service if, he/she meets any of the listed reasons which includes has not completed initial entry training (IET) or has not been awarded an MOS.

5.  For ARNGUS and USAR Soldiers, entry-level status begins upon enlistment in the ARNG or USAR.  For Soldiers ordered to IADT for one continuous period, it terminates 180 days after beginning training.  For Soldiers ordered to IADT for the split or alternate training option, it terminates 90 days after beginning Phase II advanced individual training (AIT).  Soldiers completing Phase I basic combat training (BCT) remain in entry-level status until 90 days after beginning Phase II.

6.  NGR 600-200, paragraph 8-7a(4), provides that an honorable characterization must be awarded to a Soldier upon expiration term of service fulfillment of service obligation, or when required  under the specific reason for discharge.

7.  The regulation stipulates that the character of service will be described as uncharacterized if separation processing is initiated while a Soldier is in entry level status unless an under other than honorable conditions discharge is warranted by the circumstances of the case.  An HD may be given only in cases which are clearly warranted by unusual circumstances involving outstanding personal conduct and/or performance of duty

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

2.  Although the applicant was separated from military service because she was pregnant, her record is void of the specific facts and circumstances concerning the event which led to the discharge from the ARNG and as a Reserve of the Army.  However, the record contains a properly constituted NGB Form 22, Report of Separation and Record of Service, which was not authenticated by the applicant’s signature.  This document identifies the reason and characterization of the discharge and government regularity is presumed in the discharge process.  The regulation stipulates that a separation will be described as entry-level with service uncharacterized if, at the time separation action is initiated if, the Soldier is on a split option and has not completed the required training to become MOS qualified.

3.  The NGB Form 22 indicates the applicant was discharged under the provisions of NGR 600-200, paragraph 8-26b(5), by reason of pregnancy, with a characterization of service described as uncharacterized.  Barring evidence to the contrary, it appears that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  Counsel contentions regarding the applicant’s quality of service was carefully considered.  However, an honorable discharge may be granted only in cases which are clearly warranted by unusual circumstances involving outstanding personal conduct or performance of duty.  The applicant’s service record indicates no such unusual circumstances were present and did not warrant an honorable discharge.

5.  Counsel expressed the applicant’s desire to rejoin the service, to have better job opportunities and eligibility for veteran benefits.  However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.  At the time of discharge the applicant was assigned a reentry eligibility (RE) code of 3.  An RE Code of 3 indicates the applicant requires a waiver prior to being allowed to reenlist, however, the applicant’s reentry eligibility code was changed to RE-2 by the OANG as indicated in the letter dated 23 January 2013.  As a note, a copy of the NGB Form 22A was not provided with the application nor was it found in the applicant’s record.  Further, eligibility for veteran's benefits to include 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 contact a local office of the Department of Veterans Affairs for further assistance.


6.  If the applicant desires a personal appearance hearing, it will be her responsibility to meet the burden of proof and provide the appropriate documents (i.e., the discharge packet) or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board’s consideration because they are not available in the official record.

7.  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:  Record Review   Date:  13 November 2013         Location: Washington, DC

Did the Applicant Testify?  No

Counsel:  Yes

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:		No Change
Change RE Code to:			No Change	
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)		AR20130008498



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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