IN THE CASE OF:	Ms. 

      BOARD DATE:	30 May 2014

      CASE NUMBER:	AR20130014763
___________________________________________________________________________

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, she was not in the right frame of mind due to being diagnosed with a mental condition, which she is still being treated for.  She feels all her actions were due to her inability to discern right from wrong.  She was deemed incompetent to handle her funds by the VA.  She wants to go to college, but needs an honorable discharge.

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	12 August 2013
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	17 July 2007
	d.	Reason/Authority/SPD/RE Code:	Pattern of Misconduct, AR 635-200, Chapter 14 
			Paragraph 14-12b, JKA, RE-3
	e.	Unit of assignment:	HQ, USAG, Fort Bliss, TX
	f.	Current Enlistment Date/Term:	23 August 2006, 3 years
	g.	Current Enlistment Service:	10 months, 2 days 
	h.	Total Service:	10 months, 2 days
	i.	Time Lost:	24 days
	j.	Previous Discharges:	None
	k.	Highest Grade Achieved:	E-2
	l.	Military Occupational Specialty:	14T10, Patriot Operator/Maintainer
	m.	GT Score:	105
	n.	Education:	GED
	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 23 August 2006, for a period of 3 years.  She was 19 years old at the time of entry and had a high school equivalency (GED).  She was trained in and awarded military occupational specialty (MOS) 14T10, Patriot Operator /Maintainer.  Her record documents no acts of valor or significant achievement.  She completed 10 months, and 2 days of active duty service.



SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 29 June 2007, 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 pattern of misconduct, specifically for the following offenses:  

a. being disrespectful to an NCO;
b. disobeying an NCO; and 
c. committing indecent acts with another.

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

3.  On 29 June 2007, the applicant consulted with legal counsel, was advised of the impact of the discharge action and did not submit 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 29 June 2007, 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 17 July 2007, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, for pattern of misconduct, a Separation Program Designator code (SPD) of JKA and an RE code of 3.  

6.  The applicant's record shows she had lost time during the period 24 May 2007 through 16 June 2007, due to confinement by military authorities as a result of a summary court-martial sentence.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Charge Sheet indicates the following three charges were preferred against the applicant and referred to a summary court-martial on 22 May 2007:

	a.	violation of Article 86, UCMJ, by failing to go to her appointed place of duty (070518;
	b.	violations of Article 91, UCMJ, by being disrespectful in deportment toward an NCO (070511) and disobeying an NCO on four separate occasions (070511, 070514, 070519, and 070521); and
	c.	violation of Article 134, UCMJ, committing an indecent act with PV2 H (070508)

2.  DA Report of Results of Trial indicates the applicant was found guilty of the aforementioned charges, except violation of Article 86, UCMJ, and received a sentence of forfeiture of $867 and confinement for 30 days on 24 May 2007.   

3.  Confinement Order and Inmate’s Release Order indicates the applicant was confined on 24 May 2007, and released from confinement on 14 June 2007, respectively.

4.  Two separate Personnel Actions, dated 24 May 2007, indicates the applicant’s duty status changed from PDY to CMA (confined by military authorities), effective 24 May 2007, and CMA to PDY, effective 17 June 2007.

5.  Five negative counseling statements, dated between 11 May 2007 and 20 June 2007, for being processed for involuntary separation due to patterns of misconduct; disobeying an order; and being insubordinate.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided her DD Form 214 for service under current review.

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.



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, 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 pattern of 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 a summary court-martial conviction for multiple violations of the Uniform Code of Military Justice and 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 contends that medical issues, not being able to discern right from wrong, contributed to her discharge from the Army.  However, 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, 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.  Moreover, the fact that the Veterans Administration has been treating her for a medical condition does not support a conclusion that this condition rendered her unfit for further service at the time of her discharge processing.  The available medical evidence in the record is void of any indication that the applicant was suffering from a disabling medical or mental condition during her discharge processing that would have warranted her separation processing through medical channels.  Further, Army Regulation 635-200, in pertinent part, stipulates that commanders will not take action to separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct. 

5.  The applicant contends that an upgrade of her discharge would allow educational benefits through the use of the GI Bill.  However, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.

6.  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.  

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:  Personal Appearance     Date:  30 May 2014      Location:  Washington, DC

Did the Applicant Testify?  No 

Counsel:  None

Witnesses/Observers:  No 

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)		AR20130014763



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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