IN THE CASE OF:  	Ms. 

      BOARD DATE:  	11 April 2014

      CASE NUMBER:  	AR20130011024
___________________________________________________________________________

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 and a change to the narrative reason for the discharge.

2.  The applicant states, in effect, that she was mistreated, harassed, and lied on by a member of her command resulting in not being promoted.  The applicant contends she served honorably for two years and six months and was not treated like the standard Soldier.  She believes she is a good hearted person who practices the values of honesty, loyalty, respect, and integrity.  She believes the punishment she received for her misconduct was not deserving, fair, or fit.  After receiving a FG Article 15 she was never promoted above the rank of E-1 during a 13 month period.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		10 June 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			28 May 2013
d. Reason/Authority/SPD/RE:		Pattern of Misconduct, AR 635-200, Chapter 14						paragraph 14-12b, JKA, RE-3
e. Unit of assignment:			E Co, 3rd Bn, 43rd ADA, 11th ADA Bde, Fort Bliss, 						TX
f. Current Enlistment Date/Term:	14 February 2011, 4 years
g. Current Enlistment Service:	2 years, 3 months, 10 days
h. Total Service:			2 years, 3 months, 10 days
i. Time Lost:				5 days
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-3
l. Military Occupational Specialty:	92A10, Automated Logistical Specialist
m. GT Score:				89
n. Education:				HS Graduate
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		NDSM, GWOTSM, 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 14 February 2011, for a period of 4 years.  She was 21 years old at the time of entry and a high school graduate.  She was serving at Fort Bliss, TX when her discharge was initiated.  The record does not contain any evidence of acts of valor or meritorious achievements.  She completed 2 years, 3 months, and 10 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 26 April 2013, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, by reason of a pattern of misconduct for receiving a Field Grade Article 15 (120531) for violating Articles 91, 92, and 107 of the UCMJ and receiving a Company Grade Article 15 (121106) for violating Article 86 of the UCMJ.

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 26 April 2013, the applicant consulted with legal counsel, was advised of the impact of the discharge action and indicated her intentions to submit a statement on her own behalf (NIF).  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 14 May 2013, 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 28 May 2013, 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 of service indicates five days of time lost from (130519-130523).  The record does not indicate the reason for the time lost.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Article 15, imposed on 31 May 2012, for being disrespectful in language towards a noncommissioned officer (120504), disobeying a lawful order (120322), and making a false official statement to a noncommissioned officer (120504).  The punishment consisted of reduction to E-1, forfeiture of $745.00 pay per month for two months, and extra duty and restriction for 45 days, (FG).


2.  Article 15, imposed on 9 January 2013, for leaving her appointed place of duty (120926).  The punishment consisted of forfeiture of $410.00 pay (suspended) (CG). 

3.  Several negative counseling statements dated between 8 December 2011 and 25 March 2013, for being on restriction, lack of military customs and courtesies, disrespect to a senior commissioned officer and senior noncommissioned officer, insubordinate conduct towards a noncommissioned officer, not wearing a seatbelt, failure to obey an order and regulation, recommendation for UCMJ action, noncompliance with procedural rules, absent without leave, lying to a noncommissioned officer, lying to the battalion commander, APFT test performance, not having her ID card with her at all times, missed appointments, walking with earphones while in PT uniform, driving with an invalid driver's license, conditions placed on liberties, and illegal drug possession/use.

4.  Report of Mental Status Evaluation, dated 28 March 2013, indicating the applicant was diagnosed with an adjustment disorder with mixed emotional features.  From a behavioral health standpoint the applicant was evaluated and cleared for administrative processing deemed necessary by her chain of command for Chapter 14-12c. 

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided an online application, a self-authored statement, several counseling statements, copy of her mental health evaluation to include chronological record of medical care (11 pages), UCMJ action documents, a check from Army Emergency Relief, leave and earnings statement for the month of May 2013, separation orders, dated 22 May 2013, and a copy of her DD Form 214 for the period of service under review.

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.

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 "JKA" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, pattern of misconduct.

5.  The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKA" 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 and a change to her narrative reason for separation was carefully considered.  However, after examining the applicant’s record of service, her military records, documents and 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 two Article 15s for violation of the Uniform Code of Military Justice for being disrespectful in language towards a noncommissioned officer, disobeying a lawful order, making a false official statement to a noncommissioned officer, leaving her appointed place of duty and several 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 request to change her narrative reason for separation.  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 "JKA" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12b, for a pattern of misconduct.  The regulation further stipulates that no deviation is authorized.  

5.  The applicant’s service accomplishments 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 incidents of misconduct or by the multiple negative counseling statements and the documented action under Article 15 of the Uniform Code of Military Justice.

6.  The applicant contends she was mistreated, harassed, and lied on by members of her command resulting to not being promoted.  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 mistreated, harassed, and lied on by members of her command.  In fact, the applicant’s two Articles 15 and numerous negative counseling statements justify a pattern of misconduct.  The applicant’s statements alone does not overcome the government’s presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with her request for an upgrade of the discharge.   

7.  The applicant's 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: 11 April 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)		AR20130011024



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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