AR20140001299

IN THE CASE OF: Ms.

BOARD DATE: 12 December 2014

CASE NUMBER: AR20140001299
___________________________________________________________________________

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 APPLICANTS REQUEST AND STATEMENT:

1. The applicant requests to upgrade the characterization of her service from under other than honorable to honorable.

2. The applicant states, in effect, she was discharged in an unfair manner. In her self-authored statement, in pertinent part and in effect, she states she was a good Soldier and was able to take on and complete any assigned task, until she was assigned to a unit in Korea. She asserts that a commissioned officer had assaulted her at a local national drinking and dancing establishment by running his hands up her inner thighs, and shockingly she slapped and kicked him away. She feels, if she would have been relocated to another battalion after the incident, none of the subsequent misconduct incidents would have occurred. She feels it was unfair that no action was taken against him.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date: 14 January 2014
b. Discharge Received: Under Other Than Honorable Conditions
c. Date of Discharge: 17 April 2002
d. Reason/Authority/SPD/RE Code: Misconduct, AR 635-200, Paragraph 14-12b, JKA,
RE-3
e. Unit of assignment: Co A, 2nd Fwd Spt Bn, DISCOM, 2nd Infantry
Division, Korea
f. Current Enlistment Date/Term: 30 December 1999, 4 years
g. Current Enlistment Service: 2 years, 3 months, 18 days
h. Total Service: 2 years, 3 months, 18 days
i. Time Lost: None
j. Previous Discharges: None
k. Highest Grade Achieved: E-3
l. Military Occupational Specialty: 44B10, Mental Worker
m. GT Score: 91
n. Education: HS Graduate
o. Overseas Service: Korea
p. Combat Service: None
q. Decorations/Awards: ASR; OSR
r. Administrative Separation Board: No, waived
s. Performance Ratings: None
t. Counseling Statements: Yes
u. Prior Board Review: No

SUMMARY OF SERVICE:

The record shows the applicant enlisted in the Regular Army on 30 December 1999, for a period of 4 years. She was 20 years old at the time of entry and a high school graduate. She was trained in and awarded military occupational specialty (MOS) 44B10, Mental Worker. She served in Korea. Her record documents no acts of valor or significant achievement. She completed 2 years, 3 months, and 18 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1. The evidence contained in the applicants service record shows that on 18 March 2002, 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 offenses

a. for wrongfully using marijuana;
b. failing to be at her appointed place of duty;
c. disobeying her superior commissioned officer;
d. being disrespectful toward her NCOs; and
e. wrongfully not being in her assigned unit area on numerous occasions.

2. The unit commander recommended an under other than honorable conditions discharge and advised the applicant of her rights.

3. On 29 March 2002, the applicant consulted with legal counsel, was advised of the impact of the discharge action, voluntarily waived consideration of her case by an administrative separation board, and made no election on her right to 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 of the separation with an under other than honorable conditions discharge.

4. On 9 April 2002, the separation authority approved the administrative separation board waiver request, waived further rehabilitation, and directed the applicants discharge with a characterization of service of under other than honorable conditions.

5. The applicant was discharged from the Army on 17 April 2002, 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, a Separation Program Designator code (SPD) of JKA, and an RE code of 3.

6. The applicants service record does not contain any evidence of unauthorized absences or time lost.

EVIDENCE OBTAINED FROM THE APPLICANT’S RECORD:

1. There is a positive urinalysis report contained in the record: IU, Inspection Unit, 31 July 2001, marijuana.

2. Article 15, dated 26 December 2001, for disobeying an NCO (011208) and violating a general order (011208). The punishment consisted of forfeiture of $243 and 14 days of extra duty and restriction, (CG).

3. Article 15, dated 29 November 2001, for wrongfully using marijuana (010701). The punishment consisted of a reduction to the grade of E-1 and forfeiture of $521 per month for two months, (FG).

4. Article 15, dated 30 April 2001, for failing to be at her appointed place of duty at the prescribed time (010322), disobeying an NCO (010321), disobeying a superior commissioned on two separate occasions (010211 and 010322), and violating a general order (010331). The punishment consisted of a reduction to E-2, forfeiture of $284 (suspended) and 14 days of extra duty and restriction, (CG).

5. Several negative counseling statements, dated between 14 February 2001 and 22 February 2002, for failing to be at her appointed place of duty at the prescribed time; violating a general order, regulation, or written order; disorderly conduct; being drunk; destruction of government property; testing positive for THC during a urinalysis; disobeying a superior commissioned officer; being drunk; breaking visitation policy; missing bed check; missing curfew; being recommended for involuntary separation due to a pattern of misconduct; pending an Article 15 proceedings; damaging and having her ID card replaced; arguing with an NCO; corrective training; leaving her post; being disrespectful toward an NCO; missing muster alert formation; and wearing a tongue ring.

6. An MP Blotter Report, dated 19 February 2002, indicates the applicant was the subject of an investigation for disorderly conduct (drunkenness) and damaging government property.

7. A CID sworn statement, dated 12 October 2001, rendered by the applicant details the events surrounding buying and using marijuana.

8. DD Form 629, Receipt for Prisoner or Detailed Person, dated 11 September 2001, indicates the applicant was detained for assault and adultery offenses.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided with her self-authored statement, DD Form 214 for service under current review; VA correspondence, dated 13 April 2010; a character reference statement; a request for foreign service tour, dated 9 September 2001; a void AMC flight, an incomplete date; and PCS orders with its amendment, dated 28 June 2001 and 17 October 2001, respectively.

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 members 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 Soldiers 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 an SPD Code of “JKA” will be assigned an RE Code of 3.

DISCUSSION AND RECOMMENDATION:

1. The applicants request for an upgrade of the characterization of her discharge was carefully considered. However, after examining the applicants 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 applicants 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 applicants record of service was marred by three Article 15 actions for multiple violations of the Uniform Code of Military Justice and numerous counseling statements.

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

4. The applicant contends the discharge was unjust because of an assault incident and not being transferred to another battalion. 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 any evidence to support the contention that she may have been unjustly discriminated. In fact, the applicants three Article 15 actions and numerous negative counseling statements justify a pattern of misconduct. The applicants statements alone do not overcome the governments 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 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 applicants discharge is commensurate with her overall service record. Accordingly, the records show the proper discharge and separation authority procedures were followed in this case.

6. 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: Records Review Date: 12 December 2014 Location: Washington, DC

Did the Applicant Testify, NA

Counsel: None

Witnesses/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 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) AR20140001299

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE

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