IN THE CASE OF:  	Ms. 

      BOARD DATE:  	15 November 2013

      CASE NUMBER:  	AR20130008710
___________________________________________________________________________

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, change to her reentry (RE) code, and restore her rank to SPC/E-4.

2.  The applicant states, in effect, that she believes her discharge from the Army was a result of gender discrimination from her former chain of command.  During her assignment in 3-320th Field Artillery Regiment, she noticed immediately how different females were treated from the male Soldiers.  They were treated as if they (females) didn’t belong in the unit.  She feels that the command did not give her the opportunity or the necessary guidance to run the supply room, they set her up for failure with the lack of guidance and they believed the negative comments from her prior NCO.  She feels as though she was inappropriately judged following the procedures necessary to abort her pregnancy due to medical reasons.  In addition, her commander transferred a male Soldier with less experience and less time in service to serve as her supervisor which was unfair and discriminatory.  Finally, she feels like the counseling statements and punishments the E-4 gave her, that resulted in her discharge, were also unjust, unfair, and discriminatory because they were not all done within regulation time frame 
(72 hours of the incident).  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		3 May 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			11 January 2013
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200, 14-12c, 						JKQ, RE-3        
e. Unit of assignment:			Headquarters,  3rd Battalion, 320th Field Artillery 						Regiment (Rear) (Provisional), 3rd Brigade 							Combat Team (Rear) (Provisional),  Fort Campbell, 						KY
f. Enlistment Date/Term:		25 February 2010, 3 years and 26 weeks
g. Current Enlistment Service:	2 years, 10 months, 17 days
h. Total Service:			2 years, 10 months, 17 days
i. Time Lost:				None
j. Previous Discharges:		None 
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	92Y10, Unit Supply 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:		Yes	
u. Prior Board Review:			No
SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 25 February 2010, for a period 3 years and 26 weeks, she was 21 years old at the time and a high school graduate.  When her discharge proceedings were initiated she was serving at Fort Campbell, KY.  The record shows she was awarded an AAM.   

SEPARATION FACTS AND CIRCUMSTANCES

1.  The record shows that on 28 November 2012, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for commission of a serious offense, specifically for the following:

	a.  making a false official statement (120725),
	b.  being derelict in the performance of her duties (120623),
	c.  on divers occasions, failing to go to her appointed place of duty (120312-120419).

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 5 December 2012, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and did not submit a statement on her behalf.  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 a general, under honorable conditions discharge.  

4.  On 19 December 2012, 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 on 11 January 2013, for misconduct (serious offense), under the provisions of AR 635-200, Chapter 14-12c, with an SPD code of JKQ and an RE code of 3.

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD

1.  A Company Grade Article 15, dated 22 August 2012, for making a false official statement (120725), being derelict in the performance of her duties (120623), and on divers occasions, failing to go to her appointed place of duty (120312-120419).  Her punishment consisted of a reduction to E-3, forfeiture of $462.00 pay, suspended, extra duty for 14 days, and restriction for 14 days, suspended.




2.  Numerous counseling statements, covering the period 7 May 2012 to 18 September 2012, for failing to report, AWOL, failing to follow instructions, failing to report due to parental obligation.

EVIDENCE SUBMITTED BY THE APPLICANT 

A DD Form 149, self-authored statement, AMHRR documents (28 pages), and DD Form 214.

POST-SERVICE ACTIVITY: 

None were stated by the applicant.  

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 "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c, for misconduct (serious offense).

5.  The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKQ" 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 service record, 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.  By her repeated misconduct, the applicant diminished the quality her service below that meriting an honorable discharge.  

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 she believes her chapter from the Army was a result of gender discrimination from her former chain of command, she didn’t have the necessary guidance to run the supply room, her new commander received negative comments from her prior NCO, she was unfairly judge after she aborted her pregnancy due to medical reasons, and her commander chose to put a male SPC/E-4 with less time in grade in charge of her.  The applicant’s contentions were noted; 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 the presumption through the presentation of substantial and credible evidence to support the issues she raised.  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 Article 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.   

5.  In addition, the applicant had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that she ever sought such assistance before committing the misconduct which led to the separation action under review.  

6.  The applicant has requested a change to the reentry code (RE) in order to rejoin the Army.  However, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge.  Based on AR 635-5-1 and the SPD Code/RE Code Cross Reference Table the applicant was appropriately assigned an RE code of 3.  There is no basis upon which to grant a change to the reason or to the RE code.  An RE Code of 3 indicates the applicant requires a waiver prior to being allowed to reenlist.  If reenlistment is desired, the applicant should contact a local recruiter to determine eligibility to reenlist.  Recruiters can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of reentry eligibility (RE) codes if appropriate. 
7.  The applicant requests that her rank be restored.  The Army Discharge Review Board is not empowered to restore former service member's grade, rate or rank.  The Board may only change the characterization or reason for discharge.  If an applicant believes there is an error or injustice in her discharge, she may apply to the Army Board for Correction of Military Records, using DD Form 149, which can be obtained online or from a Veterans Service Organization.

8.  Lastly, the applicant contends all of her counseling were not all done within regulatory guidelines (72 hours of the incident).  The record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The character of the applicant’s discharge is commensurate with her overall service record.  

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:  15 November 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)		AR20130008710



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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