IN THE CASE OF:  	Ms. 

      BOARD DATE:  	7 May 2014

      CASE NUMBER:  	AR20130014381
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant's record of service during the period of enlistment under review and considering the examiner’s 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 under other than honorable conditions to honorable.

2.  The applicant states, in effect, her under other than honorable conditions discharge was inequitable because the decision was made in absent of the extenuating circumstances that she was experiencing at the time.  She was in a crisis at the time and it affected her decision making process.  She desires to continue her military career and have retirement options.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		5 August 2013
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			27 April 2011
d. Reason/Authority/SPD/RE:		Misconduct, AR 135-178,Chapter 12, paragraph 12-1
e. Unit of assignment:			US Army Reserve Command, St Louis, MO
f. Current Enlistment Date/Term:	28 August 2007, USARCG/to complete military 						service obligation (100203)
g. Current Enlistment Service:	1 year, 11 months, 13 days 
h. Total Service:			7 years, 6 months, 7 days
i. Lost time:				None
j. Previous Discharges:		USAR (020204-020528)/NA									RA (020529-040827/HD										ARNG (040828-070827)/HD/it appears the date on 						the applicant’s contract of 28 July 2007 was in error 						as she was not discharged from the Army until 							28 August 2007. 
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	91X, Mental Health Specialist
m. GT Score:				122
n. Education:				College Graduate
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		AAM, AGCM, NDSM-2, GWOTSM, ASR, STFLMER 						SVCMDL
r. Administrative Separation Board: 	NIF
s. Performance Ratings:		None
t. Counseling Statements:		No
u. Prior Board Review:			No

SUMMARY OF SERVICE:

The applicant's record shows she enlisted in the USAR delayed entry program on 4 February 2002 and discharged for enlistment in the Regular Army on 28 May 2002.  The record also shows she enlisted in the Regular Army on 29 May 2002, for a period of 4 years.  She was 32 years old at the time of entry and a college graduate.  She was trained in and awarded military occupational specialty (MOS) 91X, Mental Health Specialist.  She was discharged on             27 August 2004, with an honorable characterization of service.  She enlisted in the Army National Guard on 28 August 2004, for a period of 3 years and was 34 years old at the time. She was discharged from the National Guard on 27 August 2007, with an honorable characterization of service; she was transferred to the USAR Control Group on 28 August 2007 to complete her military service obligation of 3 February 2010.  Her record does not show she served in combat, but she earned several awards including an AAM, AGCM.  She achieved the rank of SPC/E-4 and was serving in the US Army Human Resources Command, St Louis, MO when her discharge was initiated.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates on 3 February 2009, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 12, paragraph 12-1c, AR 135-178, by reason of misconduct for being ordered to active duty and failing to report for active duty.

2.  Based on the above misconduct, the unit commander recommended an under other than honorable conditions discharge.

3.  The record contains the applicant’s unexecuted election of rights.  The unit commander suspended the separation action for 45 days to afford the applicant the opportunity to consult with legal counsel and exercise her legal rights.  The applicant was granted 30 calendar days to respond after she received her election of rights memorandum, unless she requested and received an extension.  Failure to respond within 30 calendar days from the date of receipt of this memorandum constituted a waiver of her rights.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  

4.  On 4 August 2009, the separation directed the applicant’s discharge with a characterization of service of under other than honorable conditions.  The applicant was reduced to the lowest enlisted rank.

5.  The applicant was discharged from the Army on 10 August 2009, with a characterization of service of under other than honorable conditions.

6.  The applicant’s record of service does not contain any evidence of unauthorized absences time lost, or any actions under the Uniform Code of Military Justice (UCMJ).

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

The record did not contain any other relevant information.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD 293 with an issues continuation, copies of
DD-214's and an NGB Form 22, multiple documents relating to her child's
medical conditions and education, copies of documents establishing her as
the guardian of her niece, multiple award recommendations and certificates
of achievement, multiple certificates of training and multiple character
statements.

POST-SERVICE ACTIVITY:

The applicant did not provide any information with her application. 

REGULATORY AUTHORITY:

1.  Army Regulation 135-178 sets forth the basic authority for the separation of enlisted personnel from the United States Army Reserve.  Chapter 12 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, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  

2.  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.   

ANALYST’S 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 record, 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'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 her service below that meriting a general or a fully honorable discharge.  

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

4.  The applicant contends her under other than honorable conditions discharge was inequitable because the decision was made in absent of the extenuating circumstances that she was experiencing at the time.  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 contention.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that her characterization of service was unjust.

5.  Further, 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 his overall service record.

6.  The applicant further contends she was in a crisis at the time and it affected her decision making process.  The record of evidence does not demonstrate that she sought relief through her command or the numerous Army community services like the Chaplain, Army Community and Family Support Services, Community Counseling Center, and other resources available to all Soldiers.  Likewise, she has provided no evidence that she should not be held responsible for her misconduct.

7.  Also, 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.

8.  The applicant desires to continue her military career and have retirement options.  However, at the time of discharge, the applicant received an under other than honorable conditions characterization of service.  Army Regulation 601-280 stipulates that an under other than honorable conditions discharge constitutes a non-waivable disqualification, thus the applicant is no longer eligible for reenlistment.

9.  The records show the proper discharge and separation authority procedures were followed in this case.  

10.  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:  7 May 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)		AR20130014381



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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