IN THE CASE OF:  	

      BOARD DATE:  	10 January 2014

      CASE NUMBER:  	AR20130011019
___________________________________________________________________________

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 general, under honorable conditions discharge to honorable.

2.  The applicant states, in effect, she was discharged due to an incident of self-defense.  She contends her ex-boyfriend, SPC B attempted to sexually assault her and she defended herself by biting his tongue causing injury.  She states they were both heavily intoxicated and got into a verbal altercation at which time he attempted to force himself on her sticking his tongue in her mouth.  She defended herself against an unwanted, physically aggressive advance.  She completed the punishment of her Article 15 but was discharged based on the incident six months after her disciplinary action was complete.  She contends in the beginning, she was notified the discharge was for her hip issues.  She passed her Army Physical Fitness Test (APFT) and performed her duty without flaw and never failed to act in a matter unbefitting of the Army.  She found out the reason for her discharge when she saw her DD 214 (Certificate of Release or Discharge from Active Duty) at the end of the discharge process.  She states she was discharged for a reason that was not relevant and she was not told of the reason for discharge.  She contends she was discriminated against because she is a woman and an injury caused by neglect of her prior NCOs in Advanced Individual Training (AIT).  She was discharged prior to her two year enlistment period and did not receive any benefits. 
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			10 June 2013
b. Discharge Received:			General, Under Honorable Conditions
c. Date of Discharge:				9 March 2012
d. Reason/Authority/SPD/RE Code:		Misconduct (Serious Offense), AR 635-200, 
                                                                       Chapter 14-12c, JKQ, RE-3
e. Unit of assignment:				C Company, 2-159th Aviation Regiment 
APO AE
f. Current Enlistment Date/Term:		6 April 2010/6 years
g. Current Enlistment Service:		1 year, 11 months, 4 days
h. Total Service:				1 year, 11 months, 4 days
i. Time Lost:					None
j. Previous Discharges:			None
k. Highest Grade Achieved:			E-3
l. Military Occupational Specialty:		15R10, Attack Helicopter Repairer
m. GT Score:					118
n. Education:					HS Graduate
o. Overseas Service:				None
p. Combat Service:				None
q. Decorations/Awards:			NDSM, GWOTSM, ASR
r. Administrative Separation Board: 		NA
s. Performance Ratings:			No
t. Counseling Statements:			Yes
u. Prior Board Review:				No
SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 6 April 2010 for a period of 6 years.  She was 24 years old at the time of entry and a high school graduate.  Her record is void of any significant acts of valor or achievement.  She was awarded the Military Occupational Specialty 15R, Attack Helicopter Repairer and completed 1 years, 11 months, and 4 days of active duty service.  When discharge proceedings were initiated, she was serving in Germany.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 6 February 2012, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, Chapter 14-12c, misconduct (serious offense). Specifically for her involvement in a verbal altercation which turned physical when she bit SPC B’s tongue.  She also provided a false official statement to Special Agent R on 18 September 2011, and later admitted the truth to Special Agent T on 29 September 2011, during an investigation carried out by the Ansbach Criminal Investigation Division field office.

2.  Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge.

3.  On 9 February 2012, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and did not submit a statement in her own 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 28 February 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 separated on 9 March 2012, under Army Regulation 635-200, Chapter 14-12c, with a general, under honorable conditions discharge, an SPD code of JKQ, and an RE code of 3.   

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

7.  At the time of separation, the applicant’s last name was Whitmore.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.   The applicant’s record shows she received a Field Grade (FG) Article 15 on 
12 September 2011, for violation of Article 128 x 2 of the Uniform Code of Military Justice (UCMJ).  She was found guilty of all charges and her punishment consisted of reduction to the grade of E-2, extra duty and restriction for 45 days and an oral reprimand.

2.  Applicant’s sworn statement, dated 17 and 18 September 2011, questioned her about wrongful use of Spice.

3.  Applicant’s sworn statement, dated 3 July 2011, regarding incident between her and SPC B admitting to biting his tongue.
      
4.  Seven negative counseling statements dated between 6 July 2011 and 9 September 2011, for disrespect, failure to maintain accountability of her personal items, no contact order for SPC B, use of alcohol x 2, recommendation to impose bar to reenlistment, verbal and physical altercation with SPC B.
      
5.  A Military Police investigative conclusion, dated 26 July 2011, indicates the applicant was the suspect of an investigation for aggravated assault, drunk and disorderly conduct, and indecent language.  The investigation concluded that the applicant and SPC B were involved in a verbal altercation which turned physical and the applicant struck SPC B several times in the face and head, he then stuck out his tongue and the applicant bit it.  The investigation reflects the applicant admitted to the offense.

6.  DA Form 4126-R (Bar to Reenlistment Certificate), dated 11 July 2011, reflect at the time of imposition the applicant had 1 year, 3 months, and 5 days of active duty service. 

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided an online application, dated 27 May 2013, a DA Form 3349 (Physical Profile), dated 9 April 2011, showing the applicant had a permanent profile for left hip pain (flexor strain, chronic recurrent), a Certificate of Achievement for academic proficiency in her MOS training, dated 14 December 2010, a United States Army Aviation Logisitcs School AH-64D Attack Helicopter Repairer Course completion certificate, dated 17 December 2010, and Basic Combat Training Course completion certificate, dated 25 June 2010.

POST-SERVICE ACTIVITY: 

The applicant did not provide any in support of her 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 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 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 misconduct, the applicant diminished the quality of her service below that meriting a fully honorable discharge.  The applicant’s record of service was marred by an Article 15 for violation of the UCMJ and seven negative counseling statements, and a bar to reenlistment certificate.

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 was discriminated against because she is a woman and had an injury.  However, she 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.  Likewise, she has provided no evidence that she should not be held responsible for her misconduct.  Accordingly, this argument is not sufficient to support her request for an upgrade of her discharge.  Further, the service record does not support the applicant’s contention, and no evidence to support it has been submitted to corroborate the discharge was the result of any medical condition.  Further, although the applicant provided a physical profile indicating she had chronic, recurring left hip pain, the record does not contain any medical evidence to indicate a problem which would have rendered the applicant disqualified for further military service with either medical limitation or medication.  

5.  The applicant further contends she was not notified of the reason for separation until the end of the discharge process.  However, she was notified on 6 February 2012 by the unit commander for the specific reason for discharge and acknowledged receipt of the separation notice on 16 February 2012.  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, numerous negative counseling statements, and bar to reenlistment justify the characterization of her discharge.  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 records show the proper discharge and separation authority procedures were followed in this case.  

7.  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:  10 January 2014      Location: Washington, DC

Did the Applicant Testify?  No 

Counsel: yes (redacted)

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)		AR20130011019



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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