IN THE CASE OF:  	Ms. 

      BOARD DATE:  	31 January 2014

      CASE NUMBER:  	AR20130010651
___________________________________________________________________________

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 characterization from general, under honorable conditions to fully honorable.

2.  The applicant states, in effect, that she served almost five years with two overseas tours in Afghanistan and Iraq.  She is currently able to receive VA medical benefits and she paid into her Montgomery GI bill ($36,000).  She is currently attending college for nursing.  She was discharged at the last minute with an unfair discharge.  The officer that had just been assigned misjudged her.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		3 June 2013
b. Discharge Received:		General, Under Honorable Conditions 
c. Date of Discharge:			20 October 2006
d. Reason/Authority/SPD/RE:		Pattern of Misconduct, AR 635-200, Chapter 14-12b 						JKA, RE-3
e. Unit of assignment:			C Company, 10th Brigade Support Battalion, Fort 						Drum, NY  
f. Current Enlistment Date/Term:	28 September 2000, 4 years (taken from enlistment 						contract)
g. Current Enlistment Service:	5 years, 1 month, 26 days 
h. Total Service:			5 years, 1 month, 26 days 
i. Time Lost:				331 days (010504-020330)
j. Previous Discharges:		USAR/DEP (000808-000927), NA
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	68W10, Health Care Specialist
m. GT Score:				89
n. Education:				HS graduate
o. Overseas Service:			SWA x 2
p. Combat Service:			Kuwait/Iraq (030805-040601) and (050811-060727)
q. Decorations/Awards:		AAM, AGCM, NDSM, ICM, GWOTEM, GWOTSM 						ASR, OSR, EFMB
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		Yes	
u. Prior Board Review:			No

SUMMARY OF SERVICE:		
	
The applicant's enlistment contract shows she enlisted in the Regular Army on 28 September 2000 for a period of 4 years.  She was 17 years old at the time and a high school graduate.  The DD Form 214, block 12a, shows incorrect data for the applicant’s period of service (i.e., the dated entered active duty; net active service this period) and does not reflect the period of AWOL in block 29.  The applicant’s record shows she went AWOL on 4 May 2001 through 30 March 2002 (331 days) until her apprehension.  Furthermore, the applicant’s record shows she was awarded an AAM and EFMB.  When her discharge proceedings were initiated, she was serving at Fort Drum, NY.

SEPARATION FACTS AND CIRCUMSTANCES

1.  On 22 September 2006, the unit commander notified the applicant of his intent to process him for separation under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of pattern of misconduct; specifically for:

	a.  Engaging in conduct prejudicial to good order and discipline by having a sexual relationship with then PFC N, U.S. Army, a married man, between on or about 1 October 2005 and on or about 31 March 2006 at Camp Liberty, Iraq. 

	b. Receiving nonjudicial punishment for her action in Iraq, she continued to maintain an inappropriate relationship with PFC N by unlawfully cohabitating with him.  Her conduct violated the accepted standard of personal conduct and violated Article 92 (Failure to Obey a Lawful General Order) and 134 (Adultery), Uniform Code of Military Justice. 

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

3.  On 26 September 2006, the applicant waived 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 of a general, under honorable conditions discharge.  

4.  On 3 October 2006, 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 separated on 20 October 2006, under the provisions of Army Regulation 635-200, Chapter 14-12b for a Pattern of Misconduct, with a general, under honorable conditions discharge, an SPD code of JKA and an RE code of 3.
											                               6.  The applicant’s record shows 331 days (010504-020330) of lost time for AWOL; however, it’s not documented on the DD Form 214.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD

1.  On 6 April 2004, received a Field Grade (FG) Article 15, for wrongfully consuming alcohol on or about 25 March 2004.  Her punishment consisted of reduction to E-2, forfeiture of pay in the amount of $668.00 for two months, 45 days of extra duty and restriction.

2.  A Commander’s Inquiry, dated 16 August 2006, in reference to the applicant having an in appropriate relationship with PFC N.   

3.  A DD Form 616, showing the applicant’s AWOL period and mode returned.  

EVIDENCE SUBMITTED BY THE APPLICANT 

A DD Form 293 and DD Form 214.

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 her military records and the issues submitted with the application, there are insufficient 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 repeated incidents of misconduct, the applicant diminished the quality of her service below that meriting a fully honorable discharge.  The applicant’s service was marred by an Article 15.

3.  The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that her service mitigated the misconduct or poor duty performance.  

4.  The applicant contends her discharge was unjust because she was discharged at the last minute with an unfair discharge.  The officer that had just been assigned misjudged her.  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 Articles 15 and other misconduct justified 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.  The applicant contends that she paid $36,000 into her Montgomery GI bill.   She is currently attending college for nursing.  The 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.  The applicant contends that she had good service which included serving almost five years, with two overseas tours in Afghanistan and Iraq.  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 repeated incidents of misconduct and the documented actions under Article 15 of the Uniform Code of Military Justice.

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.  Records show the proper discharge and separation authority procedures were followed in this case.

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:  31 January 2014     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)		AR20130010651



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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