IN THE CASE OF:  	Ms. 

      BOARD DATE:  	16 April 2014

      CASE NUMBER:  	AR20130012351
___________________________________________________________________________

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, she was with her second husband when she became pregnant.  She was trying to get a divorce from her first husband for over four years (since 2005), but it was not final until 2009 due to being in Germany.  Her ex-husband explained to her chain of command that they were separated since 2005; however, the chain of command proceeded with the discharge procedures.  She was six months pregnant and was unable to get a job.  She was a good Soldier, received an AGCM, and served in Iraq for 13 months.  Her chain of command did not give her a chance to redeem herself or the proper amount of time to show her proof.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		5 July 2013
b. Discharge Received:		General, Under Honorable Conditions 
c. Date of Discharge:			17 June 2009
d. Reason/Authority/SPD/RE:		Pattern of Misconduct, AR 635-200, Chapter 14-12b, 						JKA, RE-3
e. Unit of assignment:			United States Army Dental Activity, Fort Stewart, 						GA
f. Current Enlistment Date/Term:	25 August 2007, 6 years
g. Current Enlistment Service:	1 year, 9 months, 22 days
h. Total Service:			3 years, 4 months, 3 days
i. Time Lost:				None
j. Previous Discharges:		RA (050824-070824), HD
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	68E10, Dental Specialist
m. GT Score:				99
n. Education:				HS Graduate
o. Overseas Service:			Southwest Asia
p. Combat Service:			Iraq (060901-071001)
q. Decorations/Awards:		ARCOM, AAM, AGCM, NDSM, ICM-CS, GWOTSM,  						ASR, OSR-2
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		Yes	
u. Prior Board Review:			No

SUMMARY OF SERVICE:		
	
The applicant's record shows she enlisted in the Regular Army on 24 August 2005 for a period of six years.  She was 21 years old at the time and a high school graduate.  She reenlisted on 25 August 2007 for a period of six years.  The applicant record shows she served a combat tour in Iraq and earned several awards that included an ARCOM, AAM and AGCM.  When her discharge proceedings were initiated, she was serving at Fort Stewart, GA.  

SEPARATION FACTS AND CIRCUMSTANCES

1.  On 11 May 2009, the unit commander notified the applicant of his intent to process her for separation under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of a pattern of misconduct; specifically for:

	a.  It was determined through a Commander’s Inquiry that she had committed the offense of adultery and then became pregnant. 

	b.  being counseled for failing to follow proper procedures and being disrespectful to noncommissioned officers. 

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

3.  On 15 May 2009, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and submitted a statement on her 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 of a general, under honorable conditions discharge.  

4.  On 18 May 2009, 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 17 June 2009, 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 does not show any time lost.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD

1.  On 14 March 2008, the applicant received a FG Article 15, for disrespecting a senior NCO.   Her punishment consisted of a forfeiture of $920.00 pay for one month (suspended), and an oral reprimand.  

2.  Several negative counseling statements covering the period 28 September 2007 through 10 March 2009, for adultery, disrespecting NCOs, failing to pass the ADAA exam, chapter notification, event counseling, unsatisfactory behavior, character reference statements, pregnancy profile, and sworn statements.



3.  A Mental Status Evaluation, dated 22 April 2009, showing the applicant was diagnosed with Axis I: Adjustment Disorder and Axis II: Borderline Personality Disorder.  The applicant was cleared for any administrative actions deemed appropriate by command to include separation in accordance with AR 635-200.

4.  A Commander’s Inquiry, dated 3 March 2009, in reference to the applicant committing adultery.  

EVIDENCE SUBMITTED BY THE APPLICANT 

The applicant provided 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 an Article 15, several negative counseling statements and sworn statements.

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 she was with her second husband when she became pregnant.  She was trying to get a divorce from her first husband for over four years (since 2005).  Her ex-husband explained to her chain of command that they were separated since 2005.  The applicant’s contentions are 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 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.   

5.  The applicant contends she was a good Soldier, received an AGCM, and served in Iraq for 13 months.  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 or by the multiple negative counseling statements and the documented actions under Article 15 of the Uniform Code of Military Justice.

6.  The applicant contends her chain of command did not give her a chance to redeem herself or the proper amount of time to show her proof.  AR 635-200, paragraph 1-16d(2), entitled counseling and rehabilitative requirements states, the rehabilitative requirements may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality Soldier.  After reviewing the applicant’s discharge packet, the separation authority properly waived the rehabilitative requirements.  Moreover, the evidence of record shows the command attempted to assist the applicant in performing and conducting herself to Army standards by providing counseling and by the imposition of non-judicial punishment.  The applicant failed to respond appropriately to these efforts.

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:  16 April 2014       Location:  Washington, DC

Did the Applicant Testify?  NA 

Counsel:  None

Witnesses/Observers:  NA 

Board Vote:
Character Change:  2	No Change:  3
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)		AR20130012351



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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