IN THE CASE OF:  	Ms. 

      BOARD DATE:  	27 June 2014

      CASE NUMBER:  	AR20130016771
___________________________________________________________________________

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 from general, under honorable conditions to honorable.

2.  The applicant states, in effect, her expiration of term of service (ETS) date was less than 90 days from her discharge date.  She was discharged prior to the outcome of a civilian criminal charge, she was not convicted of DUI, but was cited for failure to exercise due care and therefore was penalized for a policy that was deemed vague and overbroad.  She served in Operation Enduring Freedom with exceptional performance.  She received letters of recommendation from peers and superiors.  Clemency is warranted because it is an injustice for her to continue to suffer the adverse consequences of a bad discharge.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		9 September 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			17 August 2012
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200, Chapter
					14, paragraph 14-12c, JKQ, RE-3
e. Unit of assignment:			D Company, 2-3rd Aviation Regiment, 3rd Combat 						Aviation Brigade, Hunter Army Airfield, GA
f. Current Enlistment Date/Term:	17 June 2009, 3 years and 34 weeks/moral waiver
g. Current Enlistment Service:	3 years, 2 months, 1 day
h. Total Service:			3 years, 2 months, 1 day
i. Lost time:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	15F10, Aircraft Electrician
m. GT Score:				111
n. Education:				HS Graduate
o. Overseas Service:			Southwest Asia
p. Combat Service:			Afghanistan (100504-101120)
q. Decorations/Awards:		AAM, NDSM, ACM-W/ARW HD, GWOTSM, ASR 						NATO MDL
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 17 June 2009, for a period of 3 years and 34 weeks.  She was 19 years old at the time of entry and a high school graduate.  She was trained in and awarded military occupational specialty (MOS) 15F10, Aircraft Electrician.  Her record shows that she served a combat tour, and earned an AAM; she achieved the rank of SPC/E-4.  She was serving at Hunter Army Airfield, GA when her discharge was initiated.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates on 2 August 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 of misconduct- commission of serious offense.  Specifically for the following offenses:

     a.  being cited for driving under the influence (120414),

     b.  wrongfully striking PV2 B. on the left side of her face, 

     c.  willfully and wrongfully damaged glasses by striking PV2 B. in the face, and 

     d.  resisting arrested.

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 2 August 2012, the applicant waived legal counsel, was advised of the impact of the discharge action, waived consideration of her case by an administrative separation board (although she was not entitled to a board), and did not submit a statement on her 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.  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 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), with 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.  An Article 15 dated 18 May 2012, for willfully disobeying a lawful order from LTC H, by wrongfully failing to take preventive measures prior to operating a motor vehicle after drinking alcohol (120414); the punishment consisted of reduction to E-2, forfeiture of $835 pay x 2 months (suspended), extra duty for 45 days, and restriction for 45 days, (FG).

2.  An Article 15 dated 8 June 2011, for resisting being apprehended by officers T.P. and J.N, persons authorized to apprehend her (110405); willfully and wrongfully damaging eyeglasses by striking SPC B. in the face, a value of less than $500, the property of SPC B. (110405); and unlawfully striking SPC B. on the left side or her face and body with her fist (110405); the punishment consisted of a reduction to E-2 (suspended), extra duty for 45 days, and restriction for 45 days, (FG).

3.  She received three negative counseling statements, dated 20 April 2011, 6 October 2011, and 16 April 2012 for being arrested for assaulting her roommate, regarding alcohol related incidents, and being arrested for driving under the influence (DUI).

4.  A DA Form 3822 (Report of Mental Status Evaluation), dated 18 May 2012, indicated the applicant was diagnosed with an adjustment disorder with anxiety and alcohol dependence per ASAP.  She met the retention standards prescribed in AR 40-501, and there was no psychiatric disease or defect that warrants disposition through medical channels.  She was cleared for any administrative action deemed appropriate by command. 

5.  A Georgia Uniform Traffic Citation, Summons and Accusation, dated 14 April 2012 indicated the applicant was charged with DUI, and improper left/right turn.

6.  The record contains a Military Police Report, dated 6 April 2011 indicating the applicant was under investigation for simple assault, resisting arrest, and assault on law enforcement officers.

7.  Six DA Forms 2823 (Sworn Statement), dated between 5 April 20111 and 6 April 2011 regarding the incidents of the applicant assaulting her roommate and police officers.

EVIDENCE SUBMITTED BY THE APPLICANT: 

The applicant provided a DD Form 293, Separation Orders (Attachment 1), letter from civilian attorney (Attachment II), copy of current MVR (Attachment Ill), copy of valid Georgia drivers license (Attachment lV), final disposition of probation (Attachment V), TDS appeal letter (Attachment (VI), proposed separation (Attachment VII), separation initiation (Attachment VIII), Article 15 (Attachment IX), Command Policy Letter (Attachment X), Violation of Policy Letter #6 (Attachment Xl), FLAG (Attachment XII), enlistment documents (Attachment XIII), DD Form 214 (Attachment XIV), ASAP and ADAPT Certificates (Attachment XV), DUI school completion (Attachment XVI), Report of Mental Status (Attachment XVII), chronological record of medical care (Attachment XVIII), and forty-two letters of recommendation from peers and superiors (Attachment XIX).

POST-SERVICE ACTIVITY:

The applicant did not provide any information with her 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.

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, 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 (serious offense), the applicant diminished the quality of her service below that meriting a fully honorable discharge.  The applicant’s record of service was marred by two Articles 15, a military police report, three negative counseling statements, a Georgia Uniform Traffic Citation, and six 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 her expiration of term of service (ETS) date was less than 90 days from her discharge date.  The command made an assessment of the applicant's potential for becoming a fully satisfactory Soldier.  The evidence contained in the service record establishes the applicant was afforded a reasonable opportunity to overcome her shortcomings.  As the applicant did not subsequently conform to the required standards of discipline and performance, the command appropriately determined the applicant did not demonstrate the potential for further military service and initiated separation action.

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 her overall service record.

6.  The applicant further contends she was discharged prior to the outcome of a civilian criminal charge, she was not convicted of DUI, but was cited for failure to exercise due care and therefore was penalized for a policy that was deemed vague and overbroad.  Army Regulation 635-200, in pertinent part, stipulates that a Soldier may be separated when action is taken that is tantamount to a finding of guilty, if a punitive discharge authorized for the same or a closely related offense under the Manual for Courts Martial.

7.  The applicant also contends she served in OEF with exceptional performance.  The applicant’s service accomplishments and the quality of her service prior to the incidents that caused the initiation of discharge proceeding were carefully considered.  However, this service was determined not to be sufficiently mitigating to overcome the reason for discharge and the characterization of service granted.

8.  The applicant additionally contends she received letters of recommendation from peers and superiors.  The third party statements provided with the application speak highly of the applicant’s performance.  However, as such, none of these statements provide any evidence sufficiently compelling to overcome the presumption of government regularity.

9.  The applicant additionally contends clemency is warranted because it is an injustice for her to continue to suffer the adverse consequences of a bad discharge.  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.

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

11.  Therefore, the reason for discharge and the characterization of service being both proper and equitable, the analyst recommends the Board deny relief. 


SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review      Date:  27 June 2014       Location:  Washington, DC

Did the Applicant Testify:  No

Counsel:  None

Witness/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 RE Code to:		NA
Grade Restoration to:		NA
Change Authority for Separation:	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)		AR20130016771



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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