IN THE CASE OF:  	Ms. 

      BOARD DATE:  	13 June 2014

      CASE NUMBER:  	AR20140000986
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant's record of service during the period of enlistment under review, hearing her testimony 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 her under other than honorable conditions discharge be upgraded to honorable or general, under honorable conditions.

2.  The applicant states, in effect, that she was part of the first females to go through Air Defense Artillery (ADA) training at Fort Sill, OK.  She went through very challenging times, endless hours on details, extreme situations, and she never quit.  She smoked marijuana and went AWOL.  She knows of other Soldiers who committed the same offenses and are still serving.  She has learned her lesson and has been punished long enough.  If she had to do things over again in a different way she would.  She was 21 years old and this was her first time away from home.  Her mother had sent a Red Cross message requesting her presence.  She tried to do things the right way.  She was a good Soldier and would like to be able to use her GI Bill.    

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			6 January 2014
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				20 December 2002
d. Reason/Authority/SPD/RE Code:	  	In Lieu of Trial by Court-Martial, AR 635-200, 							Chapter 10, KFS, RE-4
e. Unit of assignment:				D Btry, 5th Bn, 52nd ADA, 11th ADA Bde, Fort 							Bliss, TX
f. Enlistment Date/Term:			29 August 2000, 4 years
g. Current Enlistment Service:		1 year, 11 months, 29 days
h. Total Service:				1 year, 11 months, 29 days
i. Time Lost:					113 days
j. Previous Discharges:			None
k. Highest Grade Achieved:			E-3
l. Military Occupational Specialty:		14T10, Patriot Missile Crewmember
m. GT Score:					103
n. Education:					GED
o. Overseas Service:				None
p. Combat Service:				None
q. Decorations/Awards:			ASR
r. Administrative Separation Board: 		No
s. Performance Ratings:			None
t. Counseling Statements:			None
u. Prior Board Review:				3 April 2013, denied

SUMMARY OF SERVICE:

The record shows the applicant enlisted in the Regular Army on 29 August 2000, for a period of 4 years.  She was 21 years old at the time and had a high school equivalency (GED).  She was trained in and awarded military occupational specialty (MOS) 14T10, Patriot Missile Crewmember.  Her record documents no acts of valor or significant achievement.  

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s disciplinary history includes accrual of 113 days of time lost for being AWOL twice, between 28 July 2002 through 18 November 2002, until her surrender.   

2.  On 26 November 2002, court-martial charges was preferred against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) based on AWOL (020728-021118) and wrongful use of marijuana (020607-020708).  

3.  On 9 December 2002, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial and of the maximum permissible punishment under the UCMJ, of the possible effects of a discharge under other than honorable conditions, and of the rights and procedures available to her.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge in lieu of trial by court-martial.

4.  In her request for discharge, the applicant acknowledged that by submitting the request for discharge she was admitting she was guilty of the charges against her or of a lesser-included offense that also authorized the imposition of a bad conduct discharge.  She also confirmed her understanding that if his request for discharge was approved, she could receive an under other than honorable conditions discharge.  She further stated she understood that receipt of an under other than honorable conditions discharge could result in her being deprived of many or all Army benefits, her possible ineligibility for many or all benefits administered by the Veterans Administration, and she could be deprived of her rights and benefits as a veteran under State and Federal laws.  The applicant confirmed she had no desire to perform further military service and did not submit a statement in her own behalf.  

5.  On 13 December 2002, the separation authority approved the applicant's request for discharge and directed that she be reduced to the lowest enlisted grade and issued a UOTHC Discharge Certificate.  

6.  On 20 December 2002, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) she was issued shows she completed 1 years, 11 month, and 29 days of creditable active military service and accrued 113 days of time lost due to being AWOL.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  FG Article 15, dated 18 July 2001, for wrongfully using marijuana (between 010501-010531).  Her punishment consisted of reduction to the grade of E-1, forfeiture of pay in the amount of $215.00 for two months, and 45 days of extra duty.  

2.  The record contains an uncoded urinalysis, dated 11 July 2002, positive for marijuana.

3.  A CID report, dated 22 July 2002, related to the applicant testing positive to marijuana.

4.  Red Cross message dated 25 July 2002, from the applicant’s mother.

5.  There are no negative counseling’s or actions under the Uniform Code of Military Justice.

6.  Four DA Forms 4187, dated 29 July 2002, 29 July 2002, 27 August 2002, and 25 November 2002, for failing to report, AWOL, dropped from rolls, and present for duty, respectively. 

EVIDENCE SUBMITTED BY THE APPLICANT: 

The applicant provided a DD Form 293 and DD Form 214.

POST-SERVICE ACTIVITY: 

The applicant states she is attending college.  

REGULATORY AUTHORITY:

1.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate.

2.  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.

3.  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.  

ANALYST’S DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of her discharge characterization was carefully considered.  However, after examining the applicant’s record of service, the issues and 
documents submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge.  

2.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  It also shows that after consulting with defense counsel, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 

3.  The UOTHC discharge received by the applicant was normal and appropriate under the regulatory guidance.  Her record documents no acts of significant achievement or valor and did not support the issuance of an honorable or a general discharge by the separation authority at the time of discharge and it does not support an upgrade to an honorable or a general discharge at this late date.  

4.  The applicant contends that she had good service which included being part of the first females to go through ADA training at Fort Sill, OK.  She went through very challenging times, endless hours on details, extreme situations, and she never quit.  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 warrant an upgrade to the characterization of discharge.  

5.  The applicant contends that she is attending college by using loans.  She would like to use her GI Bill to continue her education.  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 applicant contends it has been 10 years since her discharge and she has learned her lesson.  However, the US Army does not have, nor has it ever had, a policy to upgrade a discharge based on time elapsed since the discharge.  Each case is decided on its own merits based on all factors contained in the official record or as submitted by the applicant.  Changes may be warranted if the Board determines the characterization of service or the reason for discharge or both were improper or inequitable.  

7.  Moreover, the Army Discharge Review Board is authorized to consider post-service factors in the characterization of a discharge.  However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service.  Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, is considered during Board proceedings.  The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.  The applicant’s post-service accomplishments have been noted as outlined on her application.  However, in review of the applicant’s entire service record and the reasons for the discharge, it appears these accomplishments did not overcome the reason for discharge and characterization of service granted.  Her record was marred by 113 days of lost time for being AWOL for which court-martial charges were preferred against her.

8.  The applicant contends that other Soldiers with similar offenses were not discharged or allowed to stay 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.

9.  The applicant contends that She was young (21), immature, and was her first time away from home 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.

10.  The applicant contends that her mother had sent a Red Cross message requesting her presence.  However, he had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review.  

11.  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 4.  An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment. 

12.  Therefore, the reason and 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:  13 June 2014     Location:  Washington, DC

Did the Applicant Testify?  Yes

Counsel:  No

Witnesses/Observers:  None

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE

1.  The applicant submitted the following additional documents:

	a.  Medical Assitant Diploma – 1 page
	b.  Certificate of training (Health Insurance Accountability Act - 1 page
	c.  Certificate of appreciation – 1 page
	d.  Certificate of training HAZMAT – 1 page
	d.  Homeless Vet stand down 2013 – 1 page

2.  The applicant presented no additional contentions.

In addition to the evidence in the record, the Board carefully considered the additional documents and testimony presented by the applicant at the personal appearance hearing.

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)		AR20140000986



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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