AR20140002602

IN THE CASE OF:

BOARD DATE: 9 June 2014

CASE NUMBER: AR20140002602
___________________________________________________________________________

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 APPLICANTS REQUEST AND STATEMENT:

1. The applicant requests an upgrade of her discharge from general, under honorable conditions to honorable and a change to the narrative reason for separation.

2. The applicant states, in effect, she had to disclose her sexuality and was discharged due to the circumstances. She desires to receive medical benefits and use the GI Bill to finish her degree. She also requests a change to the discharge date on her DD Form 214 to reflect she served two and a half years.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date: 6 February 2014
b. Discharge Received: General, Under Honorable Conditions
c. Date of Discharge: 17 August 2005
d. Reason/Authority/SPD/RE: Misconduct, AR 635-200, Chapter 14, Paragraph 14-12b, JKA, RE-3
e. Unit of assignment: HHC, 50th Signal Battalion (Rear) (Provisional), Fort Bragg, NC
f. Current Enlistment Date/Term: 10 February 2004, 4 years
g. Current Enlistment Service: 1 year, 5 months, 2 days
h. Total Service: 1 year, 5 months, 2 days
i. Time Lost: 35 days
j. Previous Discharges: None
k. Highest Grade Achieved: E-2
l. Military Occupational Specialty: 25Q10, Multi-Channel Transmission System Operator/Maintainer
m. GT Score: 104
n. Education: GED Certificate
o. Overseas Service: None
p. Combat Service: None
q. Decorations/Awards: NDSM, GWOTSM, ASR, OSR
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 10 February 2004, for a period of 4 years. She was 21 years old at the time of entry with a GED Certificate. She was trained in and awarded military occupational specialty (MOS) 25Q10, Multi-Channel Transmission System Operator/Maintainer. Her record does not contain any evidence of acts of valor or meritorious achievements; and she achieved the rank of PV2/E-2. She was serving at Fort Bragg, NC when her discharge was initiated.

SEPARATION FACTS AND CIRCUMSTANCES:

1. The evidence contained in the applicants service record indicates that on 26 June 2005, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12b, Army Regulation 635-200, by reason of a pattern of misconduct. Specifically for the following offenses:

a. being (AWOL) x 2 (041228-050131), and (050404-050405),

b. failing to report to her place of duty on multiple occasions, and

c. being insubordinate and disobeying a noncommissioned officer.

2. Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge and informed the applicant of her rights.

3. On 29 June 2005, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and indicated she intended to submit a statement on her behalf, which is contained in the records. The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.

4. On 18 July 2005, the separation authority waived further rehabilitation and directed the applicants discharge with a characterization of service of general, under honorable conditions.

5. The applicant was separated on 17 August 2005, with a characterization of service of general, under honorable conditions under 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 record of service indicates 35 days of time lost for being AWOL from 28 December 2004 until 30 January 2005 for 33 days, mode of return unknown, and from 4 April 2005 until 5 April 2005 for 2 days, mode of return unknown.

EVIDENCE OBTAINED FROM THE APPLICANT’S RECORD:

1. An Article 15, dated 7 February 2005 for without authority, leaving her place of duty (040924); without authority, failing to go at the time prescribed to her appointed place of duty x 2 (041012, 041101); being AWOL (041228-050131); through neglect missed movement of her unit, which she was required in the course of duty to move (041115); the punishment consisted of reduction to E-1 forfeiture of $617 pay x 2 months, and extra duty for 45 days, (FG).

2. The applicant received numerous negative/performance counseling statements, dated between 28 September 2004 and 27 June 2005, for leaving her place of duty, initial counseling, being disrespectful in language, missing formation, failing to report on numerous occasions, disobeying a lawful order, failing to keep her chain of command informed, lying to the 1SG, irresponsible behavior, insubordination, and disobeying an NCO, and performance counseling for May and June 2005

3. The record of evidence contains five DA Forms 4187 (Personnel Action), dated between 29 December 2004 and 7 April 2005, which indicated the applicants present for duty, AWOL, and dropped from rolls dates.

4. DA Form 2823 (Sworn Statement), dated 22 March 2005 regarding her sexuality.

5. The record also contains a mental status evaluation, dated 21 April 2005 which indicated the applicant was psychiatrically cleared for any administrative action deemed appropriate by her command.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided an online application (six pages).

POST-SERVICE ACTIVITY:

The applicant stated in her application since being discharged from the military, she worked as a bridge and tunnel officer for the State of New York; she also worked for Homeland Security as a TSA Officer and a behavioral detection officer. When she moved to Georgia, she worked for top companies such as Lexis, Nexis, Spherion, and Cox Enterprise doing classified work.

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, 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 and a change to the narrative reason for her discharge was carefully considered. However, after examining the applicants record of service, her military records, and the issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant’s discharge or a change to the narrative reason for separation.

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 misconduct, the applicant diminished the quality of her service below that meriting a fully honorable discharge. The applicants service record was marred by a FG Article 15, numerous counseling statements, and five DA Forms 4187.

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 requested a change to the narrative reason for separation. However, 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, for misconduct. The regulation further stipulates that no deviation is authorized.

5. The applicant contends that she had to disclose her sexuality and was discharged due the circumstances. On 8 April 2005, the commanders inquiry found no concrete evidence to show a violation of the Armys Homosexual Conduct Policy. Also, the record of evidence shows the applicant was not discharged for any reason regarding her sexuality; she was discharged for a pattern of misconduct.

6. 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 applicants discharge is commensurate with her overall service record.

7. The applicant desires to receive medical benefits and use the GI Bill to finish her degree. Eligibility for veteran’s benefits to include medical and 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 applicant requests a change to the discharge date on her DD Form 214 to reflect she served two and a half years. The record of evidence (enlistment contract, discharge orders, and the DD Form 214), reveals the discharge date on the DD Form 214 is correct as it reads.

9. Also, the applicants requested change to the DD Form 214 does not fall within the purview of this Board. If the applicant feels an injustice still exists she may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans’ Service Organization.

10. The applicants post-service accomplishments have been noted as outlined on the application. However, in review of the applicants entire service record and the reasons for the discharge, it appears that these accomplishments did not overcome the reason for discharge and characterization of service granted.

11. Records show the proper discharge and separation authority procedures were followed in this case.

12. 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: Personal Appearance Date: 9 June 2014 Location: Washington, DC

Did the Applicant Testify: Yes

Counsel: None

Witness/Observer: None

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

1. The applicant submitted the following additional documents:

a. Letters of Recommendation

b. Memorandum for Record about sexual harassment

c. Achievements

d. Medical records

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: 1 No Change: 4
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: No Change
Grade Restoration to: NA
Change Authority for Separation: No Change
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) AR20140002602

Page 7 of 7 pages

ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE

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