IN THE CASE OF:	

      BOARD DATE:	9 March 2015

      CASE NUMBER:	AR20140021370
___________________________________________________________________________

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 to upgrade the characterization of her service from general, under honorable conditions to fully honorable, and to change her reentry code.

2.  The applicant states, in pertinent part and in effect, she should not have been discharged and that she should be reinstated to active duty with an appropriate increase in rank, but in the alternative, requests an upgrade and removal of the RE-3.  She suffered from severe depression caused by an ordeal prior to her discharge.  Her separation was based on summary court-martial charges that were dismissed after she demanded trial by a special court-martial.  She was denied the due process because she was not provided a reasonable chance to establish her innocence.  She was not properly counseled at the time of the allegations and charges, and was not provided the opportunity for a rehabilitative transfer. Since her discharge she was diagnosed with a major depressive disorder and received a 100 percent disability rating from VA.

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	8 December 2014
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	2 February 2008
	d.	Reason/Authority/SPD/RE Code:	Pattern of Misconduct, AR 635-200, Paragraph 14-
			12b, JKA, RE-3
	e.	Unit of assignment:	348th QM Co, 194th Combat Sustainment Bn, 501st 
			Sustainment Bde, Camp Humphreys, Korea
	f.	Current Enlistment Date/Term:	6 November 2006, 3 years, 2 weeks
	g.	Current Enlistment Service:	1 year, 2 months, 27 days
	h.	Total Service:	5 years, 0 months, 26 days
	i.	Time Lost:	None
	j.	Previous Discharges:	RA      (020528-050908) / HD
			RA      (050127-050909) / HD
			ARNG (060419-0611105) / HD
	k.	Highest Grade Achieved:	E-4
	l.	Military Occupational Specialty:	88M10, Motor Transport Operator
	m.	GT Score:	91
	n.	Education:	HS Graduate
	o.	Overseas Service:	Korea
	p.	Combat Service:	None
	q.	Decorations/Awards:	NDSM; GWOTSM; KDSM; ASR; OSR
	r.	Administrative Separation Board: 	No
	s.	Performance Ratings:	None
	t.	Counseling Statements:	Yes
	u.	Prior Board Review:	No



SUMMARY OF SERVICE:

The record shows the applicant, with a previous enlistment, enlisted in the Regular Army on 6 November 2006, for a period of 3 years and 2 weeks after serving with the Army National Guard.  She was 24 years old at the time of entry and a high school graduate.  She was trained in and awarded military occupational specialty (MOS) 88M10, Motor Transport Operator.  She served in Korea.  Her record documents no acts of valor or significant achievement.  She completed a total of 5 years and 26 days of active duty and reserve service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 10 January 2008, 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 patterns of misconduct, specifically for the following incidents:  

	a.	being derelict in the performance of her duties (070912);
	b.	being disrespectful toward an NCO in deportment (070912);
	c.	disobeying the orders of an NCO (070912);
	d.	failing to be at her appointed place of duty at the prescribed time (070913); and 
	e.	disobeying the orders of an NCO on three separate occasions (070918, 071011, and 071015).

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 11 January 2008, the applicant consulted with legal counsel, was advised of the impact of the discharge action, requested consideration of her case by an administrative separation board, although she was not entitled, and elected to submit statements 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 28 January 2008, 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 February 2008, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, for a pattern of misconduct, a Separation Program Designator code (SPD) of JKA, and a 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.  Memorandum for Record, dated 2 January 2008, subject: Rehabilitation Transfer for [the applicant], indicates the applicant was transferred due to adverse action and rehabilitation training, effective 4 June 2007. 

2.  An Article 15, dated 10 October 2007, for failing to be at her appointed place of duty at the prescribed time (070913), being disrespectful in deportment toward an NCO (070912), and disobeying an NCO on three separate occasions (070912, 070918, and 070912) (CG).  The applicant demanded trial by court-martial.

3.  Memorandum for Record, dated 7 November 2007, subject: [the applicant], rendered by a platoon sergeant details the events occurring during the applicant’s assignment to the platoon beginning on 27 June 2007, a rehabilitative transfer.

4.  Several negative counseling statements, dated between 6 August 2007 and 15 October 2007, for being denied for a promotion board; incorrect method of reporting a complaint; being rude and disrespectful towards an NCO; failing to obey an order or regulation; being insubordinate; failing to be at her appointed place of duty at the prescribed time; sleeping in a government vehicle; being indebted; and displaying inappropriate conduct. 

5.  Mental Status Evaluation, dated 9 January 2008, indicates the applicant was diagnosed with Axis I, adjustment disorder with mixed disturbance of emotions and conduct; occupational problems (ongoing); and Axis II, personality disorder.  The applicant was clear for any administrative action deemed appropriate by her command.

6.  Record of Trial by Summary Court-Martial dated 17 December 2007, in which the applicant objected to trial by Summary Court-Martial for one specification of violating Article 86, six specifications of violating Article 91 and one specification of violating Article 92 of the UCMJ.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a self-authored statement, dated 3 December 2014; VA decision correspondence; previous ADRB decision, dated 28 January 2009; memorandum for record, dated 21 December 2007, subject: Dismissal of Charges in the case of [the applicant]; a record of trial by summary court-martial, dated 17 December 2007, indicates the applicant objected to a summary court-martial; a prescription information sheet; health record, dated 26 September 2007; sworn statement, dated 12 September 2007, with applicant’s statement, undated; four sworn statements with applicant’s statement, dated 15 January 2008; five counseling statements, dated in September and October 2007; unit commander’s forwarding memorandum, undated; memorandum for record, dated 2 January 2008, subject: Rehabilitation Transfer for [the applicant]; e-mail correspondence, dated between 22 January 2007 and 12 July 2007; congressional letter, dated 11 October 2007; obituary program; and medical records, dated 30 October 2007. 


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.

4.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It identifies the SPD code of "JKA" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12b, pattern of misconduct.

5.  The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned a SPD Code of "JKA" will be assigned a RE Code of 3.

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of the characterization of her discharge and to change the reentry code was carefully considered.  However, after examining the applicant’s record of service, her military records, and the documents and 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 numerous negative counseling statements.

3.  The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or sufficient evidence that shows the applicant’s service mitigated the misconduct or poor duty performance.  

4.  The applicant contends, the discharge was unjust because her separation was based on summary court-martial charges that were dismissed subsequent to her request for trial by a special court-martial, and she was denied the due process of establishing her innocence.  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 her issues.  There is no evidence in the record, nor has the applicant produced sufficient evidence to support the contention that she may have been unjustly discriminated.  In fact, the applicant’s numerous negative counseling statements justify a pattern of misconduct.  The applicant’s statements alone do not overcome the government’s presumption of regularity and any additional corroborating and supporting documentation or sufficient evidence has been provided with the request for an upgrade of the discharge.  The rationale the applicant provided as the basis for what she believes was an unfair discharge is not supportable by the evidence contained in the record and can only be viewed as speculative in nature.

5.  The applicant contends, she was not afforded the opportunity for a rehabilitation transfer or properly counseled; however, AR 635-200, paragraph 1-16d(2), entitled counseling and rehabilitative requirements states, the rehabilitative requirements may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality Soldier.  After reviewing the applicant’s discharge packet, the separation authority properly waived the rehabilitative requirements.  Moreover, the evidence of record shows the command attempted to assist the applicant in performing and conducting herself to Army standards by providing counseling and a rehabilitative transfer in June 2007.  The applicant failed to respond appropriately to these efforts.  

6.  The applicant contends, the Veterans Administration has granted her a 100 percent service connected disability for a major depressive disorder.  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 9 January 2008, the applicant underwent a mental status evaluation which indicates she was mentally responsible, with thought content as clear, and was able to recognize right from wrong.  It appears the applicant’s chain of command determined that although she was suffering from an adjustment disorder with mixed disturbance and emotions and conduct, she knew the difference between what was right and wrong as indicated by the mental status evaluation.  

7.  The applicant contends, the reentry code of her discharge should be removed.  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 is no basis upon which to grant a change to the reason or to the RE code.  

8.  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.  

9.  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: 9 March 2015       Location: Washington, DC

Did the Applicant Testify?  Yes 

Counsel:  Yes

Witnesses/Observers:  None 

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

1.  The applicant submitted the following additional documents:

	a.  Picture of ankle (1 page)
	b.  Medical records (2 pages)
	c.  Obituary (2 pages)

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:		No Change
Change RE Code to:			No Change
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)		AR20140021370



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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