IN THE CASE OF:	Ms. 

      BOARD DATE:	26 March 2014

      CASE NUMBER:	AR20130012378
___________________________________________________________________________

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 to upgrade the characterization of her service from general, under honorable conditions to fully honorable.

2.  The applicant states, in effect, for decades, Soldiers, including her first sergeant and several of her NCOs have received DUIs in their careers.  She was discharged because of a DUI.  Upon her DUI, she was informed of the Fort Bragg policy that mandates the initiation of separation proceedings for certain alcohol or drug related misconducts to the respective SPCMCA for decision or recommendation as to separation or retention, if the SPCMCA is not the separating authority.  In her case the SPCMCA was not the separating authority.  She received a UCMJ punished through XVIII Airborne Corps, Fort Bragg and actions to separate her.  Her commander, CPT J, wrote an executive summary and recommended her separation with an honorable characterization of service.  She believes her separation was unfair and discriminatory.  Several Soldiers have received DUIs and some received honorable discharges.  She feels she was made an example to her entire unit.  Her attempts for submitting rebuttals were shot down.  She realizes she made an irreversible mistake but facing constant judgment, mistreatment, and losing her entire career and everything she held pride in and loved were wrong.  A general discharge and a reentry code of 3 have prevented her from being able to reenter military service in any branch.  In her self-authored statement, in pertinent part, she states that since her discharge, she has endlessly tried to reenlist and exhausted all attempts, only to be informed her only chance to reenter is to receive an upgrade to honorable.  She concludes serving her country is extremely important to her.  She takes pride in being a Soldier.  She does not believe her behavior accurately represents her character and career, or her potential.

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	8 July 2013
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	16 January 2013
	d.	Reason/Authority/SPD/RE Code:	Misconduct (Serious Offense), AR 635-200, 
			Paragraph 14-12c, JKQ, RE-3
	e.	Unit of assignment:	8th Ord Co, 189th Combat Sustainment Support 
			Bn, 82nd Sustainment Brigade, Fort Bragg, NC 
	f.	Current Enlistment Date/Term:	14 July 2010, 4 years
	g.	Current Enlistment Service:	2 years, 6 months, 3 days
	h.	Total Service:	2 years, 6 months, 3 days
	i.	Time Lost:	None
	j.	Previous Discharges:	None
	k.	Highest Grade Achieved:	E-4
	l.	Military Occupational Specialty:	89A10, Ammunition Stock Control and Accounting 
			Specialist
	m.	GT Score:	104
	n.	Education:	HS Graduate
	o.	Overseas Service:	Korea
	p.	Combat Service:	None
	q.	Decorations/Awards:	AAM; NDSM; GWOTSM; KDSM; ASR; OSR
	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 July 2010, for a period of 4 years.  She was 19 years old at the time of entry and a high school graduate.  She served in Korea.  She earned an AAM.  She completed 2 years, 6 months, and 3 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 16 November 2012, 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 misconduct (serious offense), specifically for:

	a.	being arrested on Fort Bragg, North Carolina, for driving while impaired after being stopped for failing to maintain her lane (121015) and
	b.	being administered an intoximeter that determined her BAC to be .12%, which is over the legal limit authorized to operate a motor vehicle in the State of North Carolina. 

2.  Based on the above misconduct, the unit commander recommended an honorable discharge and advised the applicant of her rights.

3.  On 20 November 2012, the applicant consulted with legal counsel, was advised of the impact of the discharge action and submitted a statement on 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 6 December 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 discharged from the Army on 16 January 2013, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct (serious offense), a Separation Program Designator code (SPD) of JKQ and an RE code of 3. 

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



EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  There are no counseling statements or UCMJ actions in the record.  

2.  A General Officer Memorandum of Reprimand dated, 2 November 2012, for driving while intoxicated.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a self-authored statement, dated 3 July 2013; DD Form 214 for service under current review; four character reference statements, dated 6 November 2012 and 23 November 2013, respectively; Fort Bragg Policy, dated 26 March 2012, for mandatory initiation of administrative separation for drug and alcohol-related offenses; unit commander’s memorandum, dated 16 October 2012, providing an executive summary of the applicant’s service; and counseling statement, dated 15 October 2012, indicating the applicant was counseled on a DUI incident.

POST-SERVICE ACTIVITY: 

The applicant provided none.  

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 "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, misconduct (serious offense).

5.  The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKQ" 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 was carefully considered.  However, after examining the applicant’s service record, and the issues and documents 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 standards for acceptable conduct and performance of duty by military personnel.  The applicant by violating the Army's policy not to abuse alcohol, compromised the special trust and confidence placed in a Soldier.  The applicant, as a Soldier, had the duty to support and abide by the Army's alcohol abuse policies.  By abusing alcohol, the applicant knowingly risked a military career and diminished the quality of her service below that meriting an honorable discharge.  

3.  The applicant contends the discharge was unjust because the SPCMCA was not the separating authority in her case according to the Fort Bragg policy that mandated initiation of separation proceedings for alcohol and drug related misconduct, and because she received UCMJ punishment through the XVIII Airborne Corps and her unit commander had recommended her for an honorable characterization of service.  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 here issues.  There is no evidence in the record, nor has the applicant produced sufficient evidence to support the contention that she may have been unjustly discriminated.  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.  Moreover, the rationale the applicant provided as the basis for what she believes was an unfair discharge is not supportable by the evidence contained in the record and can only be viewed as speculative in nature.

4.  The third party statements provided with the application speak highly of the applicant’s performance, although they were previously considered during her separation proceedings.  However, the persons providing the character reference statements were not in a position to fully understand or appreciate the expectations of the applicant’s chain of command.  As such, none of these statements provide any evidence sufficiently compelling to overcome the presumption of government regularity at this time.

5.  The applicant contends that other Soldiers with similar offenses were not discharged or allowed to stay in the Army, and some received honorable discharges.  However, the method in which another Soldier’s case was handled is not relevant to the applicant’s case.  Applicable regulations state that each case must be decided on an individual basis considering the unique facts and circumstances of that particular case.  

6.  The applicant contends that she had good service and the behavior that led to her discharge does not accurately represent her character and career, or her potential.  The applicant’s service accomplishments and the quality of her service prior to the incident 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 serious incidents of misconduct or by the imposition of a General Officer Memorandum of Reprimand that documented her misconduct.

7.  Furthermore, the applicant desires to rejoin the Military Service.  However, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge.  Based on Army Regulation 635-5-1 and the SPD Code/RE Code Cross Reference Table the applicant was appropriately assigned an RE code of 3.  There are no basis upon which to grant a change to the reason or to the RE code.  An RE Code of 3 indicates the applicant requires a waiver prior to being allowed to reenlist.  If reenlistment is desired, the applicant should contact a local recruiter to determine eligibility to reenlist.  Recruiters can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of reentry eligibility (RE) codes if appropriate.

8.  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.  Accordingly, the 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:  26 March 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)		AR20130012378

Page 7 of 7 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1