IN THE CASE OF:  	Ms. 

      BOARD DATE:  	2 May 2014

      CASE NUMBER:  	AR20130020028
___________________________________________________________________________

Board Determination and Directed Action

1.  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 to be both proper and equitable and voted to deny relief.  
      
2.  However, notwithstanding the propriety of the applicant's discharge, the Board found that the applicant's DD Form 214, blocks 25, 26 and 28, contain erroneous entries.  

3.  The Board directed the following administrative corrections and reissue of the applicant’s DD Form 214, as approved by the separation authority:
      
      a. block 25, separation authority changed to AR 635-200, paragraph 14-12b 
      b. block 26, separation code changed to JKA 
      c. block 28, narrative reason for separation changed to  Pattern of Misconduct  




      
      
      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 under other than honorable conditions discharge to general, under honorable conditions.

2.  The applicant states, in effect, she was diagnosed with Post Traumatic Stress Disorder (PTSD) and sought assistance with negative results.  She contends her behavior kept getting worse and she still was not provided any assistance.  She would like to attend college to obtain a degree and get a job.
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			4 November 2013
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				16 October 2013
d. Reason/Authority/SPD/RE Code:		Misconduct (Serious Offense), AR 635-200
Chapter 14-12c, JKQ, RE-3
e. Unit of assignment:				HHC, 2nd BSTB, 2nd BCT, 1st Cavalry
Division, Fort Hood, TX
f. Current Enlistment Date/Term:		8 September 2010/3 years, 21 weeks
g. Current Enlistment Service:		3 years, 1 month, 9 days
h. Total Service:				3 years, 1 month, 9 days
i. Time Lost:					None
j. Previous Discharges:			None
k. Highest Grade Achieved:			E-3
l. Military Occupational Specialty:		88M10, Motor Transport Operator
m. GT Score:					96
n. Education:					HS Graduate
o. Overseas Service:				SWA
p. Combat Service:				Iraq (110526-110807)
q. Decorations/Awards:			NDSM, GWOTSM, ICM-CS, ASR
r. Administrative Separation Board: 		Yes
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 September 2010, for a period of 3 years and 21 weeks.  She was 20 years old at the time of entry and a high school graduate.  She served in Iraq and did not earn any significant awards for valor or achievement.  She completed 3 years, 1 month, and 9 days of active duty service.  When her discharge proceedings were initiated, she was serving at Fort Hood, Texas.
SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 7 May 2013, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, Chapter 14-12b, for a pattern of misconduct. Specifically for:

     a.  wrongful use of spice on;

     b.  failed to be at her appointed place of duty on divers occasions;

     c.  being disrespectful in deportment toward SFC B on 17 August 2011;

     d.  failed to obey a lawful order from SSG S and LTC S; and

     e.  being arrested for breaking into the Smoke Shake located in Killeen, Texas.

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

3.  On 8 May 2013, the applicant waived her right to consult with legal counsel, requested consideration of her case by an administrative separation board but waived her personal appearance before the board, and did not submit a statement in her own behalf.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  The intermediate commanders reviewed the proposed action and recommended approval with an under other than honorable conditions discharge.  

4.  On 18 June 2013, the applicant was notified to appear before an administrative separation board and advised of her rights.  

5.  On 23 July 2013, the administrative separation board convened.  The applicant waived her right to be present during the entire proceedings.  In addition, she waived her right to be represented by counsel.  The board recommended the applicant’s discharge with a characterization of service of under other than honorable conditions.
  
6.  On 16 September 2013, the separation authority approved the recommendation of the administrative separation board and directed the applicant’s discharge with a characterization of service of under other than honorable conditions.

7.  The applicant was discharged from the Army on 16 October 2013, with a characterization of service of under other than honorable conditions under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, for misconduct (pattern of misconduct), a Separation Program Designator code (SPD) of JKQ and an RE code of 3. 

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


EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers), dated 
23 July 2013, reflects the board recommended the applicant be separated from the Army for a pattern of misconduct, under the provisions of AR 635-200, Chapter 14-12b, with an under other than honorable discharge.  The separation authority approved the recommendation of the board on 16 September 2013.

2.  Criminal Investigative Division (CID) Report, dated 24 and 25 July 2012, reflects the applicant was the subject of an investigation for failure to obey a general order, Spice-Fort Hood Command Policy SJA-03.

3.  DA Form 2823 (Sworn Statement), dated 23 July 2012, reflects the applicant admitted in her statement that she smoked spice. 
      
4.  Thirteen negative counseling statements dated between 14 April 2011 and 6 September 2011, for failure to be at her appointed place of duty x 2 (110719 and 110912), failure to report x 2 (110912 and 110414), disobeying a lawful order or regulation x 3 (111006 x 2 and 110624), disrespect to an NCO, missing medical appointments x 2 (110712 and 110509), missing formation, late for work, insubordinate conduct, disloyal statements, straggling, and restriction.
      
5.  DA Form 4833 (Commander’s Report of Disciplinary or Administrative Action), dated 24 July 2012, reflects CID referred the applicant to the command for two offenses of failure to obey a general order, Spice-Fort Hood Command Policy SJA-03 on 18 and 19 July 2012.

6.  An Affidavit for Arrest, dated 10 December 2012, reflects the State of Texas, Bell County, suspected the applicant of burglary of a building.

7.  DA Form 3822 (Report of Mental Status Evaluation), dated 16 May 2013, reflects the applicant had no obvious impairments and could understand the difference between right and wrong.  The applicant was in the Medical Evaluation Board (MEB) process, including a psychiatric condition, and diagnosed with PTSD from her record.

8.  DA Form 3947 (Medical Evaluation Board Proceedings), dated 6 June 2012, reflects the applicant was diagnosed with chronic PTSD and a lumbar strain.  She was referred to a Physical Evaluation Board (PEB).

9.  DA Form 7652, (Physical Disability Evaluation System (PDES) Commander’s Performance and Functional Statement), dated 1 May 2012, indicates the applicant’s performance was not improving and she showed no interests in resuming duties in her Military Occupational Specialty.  The commander stated the applicant could not be trusted to report on time, go unescorted to appointments, or to be honest when making a mistake.  The applicant could not deploy and had a diagnosis of a mental condition which did not allow her near weapons at anytime.  The commander indicated the applicant received a Field Grade (FG) Article 15 and was reduced from E-3 to E-2.  As a note, the document that reduced the applicant is not present in the available record.
10.  A memorandum from the applicant, dated 7 November 2011, regarding an Article 15.  The applicant provided a statement to the imposing authority mitigating factors to consider before imposing punishment under the provisions of Article 15, UCMJ.  

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, dated 29 October 2013, a DD Form 214, a Veteran Affairs disability rating for PTSD and lumbar strain, and AF Form 3899 (Aeromedical Evaluation Patient Record), dated 20 July 2011.

POST-SERVICE ACTIVITY: 

The applicant did not provide any in support of 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 documents and the issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge.  

2.  However, the service record indicates that someone in the discharge process erroneously entered the reason for separation as misconduct (serious offense), authority as AR 635-200, paragraph 14-12c, and SPD code of JKQ.  However, the separation authority approved the discharge under the provisions of AR 635-200, paragraph 14-12b, for a pattern of misconduct.

3.  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 general or a fully honorable discharge.  The applicant’s record of service was marred by thirteen negative counseling statements, an affidavit for arrest for burglary of a building, and a FG Article 15.  

4.  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.  

5.  The applicant’s service record contains documentation that supports a diagnosis of in service PTSD; however, a careful review of the entire record reveals that this medical condition did not overcome the reason for discharge and characterization of service granted.  The record shows that on 16 May 2013, the applicant underwent a mental status evaluation which indicates she was mentally responsible and was able to recognize right from wrong.  It appears the applicant’s chain of command determined that although she was suffering from PTSD, she knew the difference between what was right and wrong as indicated by the mental status evaluation.  Further, there are many Soldiers with the same condition that completed their service successfully.

6.  The applicant contends she sought help for her PTSD and did not receive any assistance.  However, the evidence of record shows the applicant was counseled numerous times for missing her medical appointments.  She was counseled on 9 July 2011, regarding her high risk behavior and given a list of resources available to her for assistance with any problems she may have been experiencing.  The applicant failed to respond appropriately to these efforts.  Further, 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.  

7.  The applicant has expressed her desire to have better job opportunities and utilize the benefits of the GI Bill.  However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.  Further, 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.

8.  The separation authority did not address whether he considered the recommendations of the MEB.  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 was unjustly discriminated.

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

10.  Therefore, the characterization of service being both, proper and equitable, recommend the Board deny relief.  However, recommend the Board make the following changes:  
      
      a. change block 25, separation authority to AR 635-200, paragraph 14-12b
      b. change block 26, separation code to JKA
      c. change block 28, narrative reason for separation to Pattern of Misconduct    

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review        Date:  2 May 2014           Location: Washington, DC

Did the Applicant Testify?  No 

Counsel: None

Board Vote:
Character Change:  2	No Change:  3
Reason Change:	0	No Change:  5
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:		Yes
Change Characterization to:	No Change
Change Reason to:			Misconduct (Pattern of Misconduct)
Change Authority for Separation:	AR 635-200, Ch 14, Paragraph 14-12b
Change RE Code to:		NA
Grade Restoration to:		NA
Other:					Separation Program Designator (SPD) code to JKA






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)		AR20130020028



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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