IN THE CASE OF:	Ms. 

      BOARD DATE:	30 May 2014

      CASE NUMBER:	AR20130014765
___________________________________________________________________________

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

2.  The applicant states, in effect, she was treated unfairly.  She made mistakes; however, returning late from her emergency leave when her grandmother passed was fair.  All other mistakes were unjust.  Other Soldiers who made worst mistakes were treated with favoritism.  Her mistakes, although she was guilty of wrongdoing, did not involve severe misconduct like drinking and driving or fighting.  Since her discharge, she has been a top employee at a mortgage firm—she is also young and earns great money.  However, being in the military is where she belongs.  She would like another chance at fighting for her country.  She wasn’t ready then, but she is now ready, has a ton more knowledge, and willing to do whatever it takes.  

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	12 August 2013
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	2 August 2012
	d.	Reason/Authority/SPD/RE Code:	Misconduct (Serious Offense), AR635-200, 
			Paragraph 14-12c, JKQ, RE-3
	e.	Unit of assignment:	Company A, 832nd Ordnance Battalion, 59th 
			Ordnance Brigade, Fort Lee, VA
	f.	Current Enlistment Date/Term:	8 November 2011, 4 years
	g.	Current Enlistment Service:	0 years, 8 months, 25 days
	h.	Total Service:	0 years, 8 months, 25 days
	i.	Time Lost:	None
	j.	Previous Discharges:	None
	k.	Highest Grade Achieved:	E-2
	l.	Military Occupational Specialty:	None
	m.	GT Score:	102
	n.	Education:	HS Graduate
	o.	Overseas Service:	None
	p.	Combat Service:	None
	q.	Decorations/Awards:	None
	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 8 November 2011, for a period of 4 years.  She was 20 years old at the time of entry and a high school graduate.  Her record documents no acts of valor or significant achievement.  She was attending the Advanced Individual Training (AIT) at Fort Lee, VA, when she was discharged.  She completed 8 months and 25 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 20 July 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 being counseled for the following offenses:  

	a.	for failing to obey a lawful order issued by COL B, to wit: Policy Number 350-1, 59th Ordnance Brigade Phasing and Privileges Policy, by wrongfully consuming alcohol (120525), while in MOS-I Phase V Soldier status (120531);
	b.	for failing to obey a lawful order issued by COL B, to wit: Policy Number 3 50-1, 59th Ordnance Brigade Phasing and Privileges Policy, by wrongfully traveling off post (120525), without an approved off post pass (120531);
	c.	for failing to obey a lawful order issued by COL B, to wit: Policy Number 350-1, 59th Ordnance Brigade Phasing and Privileges Policy, by being seen off post wearing civilian clothes (120616), while in Phase IV Soldier status (120616);
	d.	for failing to obey a lawful order given by SSG W (120618), to go to formation, instead disobeying and going to her room, instead (120618); and 
	e.	for failing to be at her appointed place of duty, to wit: her unit’s accountability formation at 0500 (120618). 

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 20 July 2012, 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 27 July 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 2 August 2012, 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.  Article 15, dated 21 June 2012, for disobeying a lawful order on two separate occasions, by wrongfully consuming alcohol and traveling off-post without an approved off-post pass (120525) a.  The punishment consisted of reduction to the grade of E-1, forfeiture of $745, 45 days of extra duty and restriction, (FG). 

2.  Three negative counseling statements, dated between 31 May 2012 and 18 June 2012, for violating pass privileges; consuming alcohol; wearing civilian clothes without authority; failing to go to her appointed place of duty at the prescribed time; and being insubordinate toward an NCO.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided none.

POST-SERVICE ACTIVITY: 

The applicant states, in effect, since her discharge, she has been employed as a top employee at a mortgage firm. 

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.

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 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 serious incidents 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 an Article 15 action for 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 the discharge was unjust because she was not treated fairly.  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 may have been unjustly discriminated.  In fact, the applicant’s Article 15 action and negative counseling statements justify serious incidents 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 that other Soldiers with worst offenses were treated with favoritism, perhaps indicating they were not discharged or allowed to remain in the Army.  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 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.  

7.  The applicant contends that she was young and not ready to serve her country at the time of the discharge.  The record shows the applicant met entrance qualification standards to include age.  There is no evidence to indicate the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

8.  The applicant contends that since leaving the Army, she has been employed with a mortgage firm as a top employee.  The applicant’s post-service accomplishments have been noted as outlined on the application.  However, in review of the applicant’s entire service record and the reasons for the discharge, it appears that these accomplishments did not overcome the reason for discharge and characterization of service granted.  

9.  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.  

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:  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)		AR20130014765

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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