IN THE CASE OF:  	Ms. 

      BOARD DATE:  	2 December 2013

      CASE NUMBER:  	AR20130009991
___________________________________________________________________________

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.

2.  The applicant states, in effect, that she would like an upgrade of her discharge for the purpose of being able to receive educational benefits.  The applicant contends she was unjustly discharged.  She contends she asked to be discharged for not providing a Family Care Plan and was denied.  She did not receive the proper support from her superiors and was not given the chance to be chaptered out in order to solve her dilemma.  She contends she never got into any trouble until she was assigned to the rear detachment.  She had no one to stand up for her.  Once she committed enough misconduct, separation action was initiated for “Pattern of Misconduct”, although she asked for the past six months to be discharged due to not providing a family care plan.  She was promoted by recommended waivers to E-3 and E-4 for outstanding service.  She became pregnant approximately two months before deployment and it was believed she got pregnant to keep from deploying, which is slander, and everything went downhill from that point.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		20 May 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			4 January 2011
d. Reason/Authority/SPD/RE:		Pattern of Misconduct, AR 635-200, Chapter 14						paragraph 14-12b, JKA, RE-3
e. Unit of assignment:			HHC, 1st BCT (R)(P), Fort Drum, NY
f. Current Enlistment Date/Term:	19 March 2008, 4 years and 19 weeks
g. Current Enlistment Service:	2 years, 9 months, 16 days
h. Total Service:			2 years, 9 months, 16 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:				110
n. Education:				GED
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		NDSM, ASR
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 19 March 2008, for a period of 4 years and         19 weeks.  She was 20 years old at the time of entry and had a high school equivalency (GED).  She was serving at Fort Drum, NY when her discharge was initiated.  The record does not contain any evidence of acts of valor or meritorious achievements.  She completed 2 years, 9 months, and 16 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 9 December 2010, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason of a pattern of misconduct.  Specifically for the following offenses:

a. repeatedly failing to go to her appointed place of duty and lied to her noncommissioned officer about her whereabouts

b. received a Field Grade Article 15 for the above offenses and was given a partially suspended punishment to allow her an opportunity to overcome

c. one month after being punished for her behavior, she resumed failing to go to her appointed place of duty, lying to her noncommissioned officer and presenting false documentation as to her duty status, i.e., unauthorized quarters slip

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

3.  On 14 December 2010, 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 22 December 2010, 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 4 January 2011, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, for a pattern of misconduct, with a Separation Program Designator code (SPD) of JKA and an RE code of 3. 

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



EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Article 15, imposed on 20 September 2010, for failure to go at the time prescribed to her appointed place of duty x 5 (100419, 100421, 100422, and 100423).  The punishment consisted of reduction to the grade of E-3, forfeiture of $423.00 pay for one month (suspended), and extra duty for 14 days (suspended) (FG).

2.  A Record of Supplementary Action under Article 15, UCMJ, dated 22 November 2010, which vacates the suspension of punishment of forfeiture of $423.00 and extra duty for          14 days imposed on 20 September 2010, for failure to go at the time prescribed to his appointed place of duty x 2 (101012 and 101013).

3.  Seven negative counseling statements dated between 26 January 2010 and 5 November 2010, for failure to be at her appointed place of duty, failure to provide leadership of quarters slip, failure to attend mandatory training, failure to report/unaccounted for, falsifying document-slip call slip with quarters, failure to be at her appointed place of duty (pregnancy physical training).

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, copy of recommendation for award, certificate of promotion, certificate of achievement, and certificate of affiliation.

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.

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, the document and the issue 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 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 seven 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’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 multiple negative counseling statements and the documented actions under Article 15 of the Uniform Code of Military Justice.

5.  The applicant contends she was unjustly discharged and should have been discharged for not providing a family care plan.  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 discharged.  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.

6.  The applicant expressed her desire for an upgrade of her discharge for the purpose of being able to receive educational benefits.  However, 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.

7.  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.

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:  Records Review     Date:  2 December 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)		AR20130009991



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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