IN THE CASE OF: BOARD DATE: 10 June 2015 CASE NUMBER: AR20140008859 ___________________________________________________________________________ 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 APPLICANT’S REQUEST AND STATEMENT: 1. The applicant requests an upgrade of her discharge from general, under honorable conditions characterization to honorable. 2. The applicant states, in effect, that she would like an upgrade of her discharge for the purpose of being able to rejoin the military. She contends she received the AGCM and reenlisted two weeks prior to her discharge. She believes she was discharged as a result of a personal vendetta. She also contends both her parents died in the same year and she lashed out; instead of receiving help she was disregarded and discharged. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 19 May 2014 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 7 October 2008 d. Reason/Authority/SPD/RE: Pattern of Misconduct, AR 635-200, Chapter 14, paragraph 14-12b, JKA, RE-3 e. Unit of assignment: A Co, 3rd Bn, 85th IN, Fort Drum, NY f. Current Enlistment Date/Term: 29 January 2008, 6 years g. Current Enlistment Service: 8 months, 9 days h. Total Service: 4 years, 22 days i. Time Lost: None j. Previous Discharges: RA-040916-080128/HD k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 74D10, Chemical Biological Radiological and Nuclear Specialist m. GT Score: 99 n. Education: HS Graduate o. Overseas Service: None p. Combat Service: None q. Decorations/Awards: AGCM, NDSM, ASR r. Administrative Separation Board: No s. Performance Ratings: None t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 16 September 2004, for a period of 3 years and 22 weeks. She reenlisted 29 January 2008, for a period of 6 years. She was 21 years old at the time of reenlistment and a high school graduate. She was serving at Fort Drum, NY when her discharge was initiated. Her record indicates she achieved the rank of SPC/E-4 and earned several awards to include the AGCM. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record indicates on 4 September 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 a pattern of misconduct. Specifically for the following offenses: a. altering her date of birth on her military identification card to read 19 December 1980, when her actual date of birth was 19 December 1986, b. driving on post on a revoked license (15 November 2007), c. receiving a civil conviction for driving while her ability was impaired by alcohol (29 March 2008), d. disobeying a lawful command from a commissioned officer, not to drive on post for one year, due to suspended driving privileges (28 May 2008), e. failing to register weapons with the Military Police Station, to wit: a fixed blade combat style knife and a machete (29 June 2008) and proper storage, and f. being under investigation in the city of Watertown, New York for a menacing act that occurred on 30 June 2008. 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 16 September 2008, the applicant waived her right to consult with legal counsel, was advised of the impact of the discharge action and did not submit a statement 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 26 September 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 7 October 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, with a Separation Program Designator code (SPD) of JKA and an RE code of 3. 6. The applicant’s record contains no evidence of unauthorized absences or time lost. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. A MP Report dated 22 January 2006, which indicates the applicant was the subject of an investigation for false or unauthorized pass offenses (altered ID card). 2. A MP Report dated 16 November 2007, that indicates the applicant was the subject of an investigation for aggravated unlicensed operation of a motor vehicle second degree. 3. A MP Report dated 28 May 2008, that indicates the applicant was the subject of an investigation for willfully disobeying a superior commissioned officer. 4. A Article 15, imposed on 18 June 2008, for disobeying a lawful order from a commissioned officer not to drive on post for one full year (080528). The punishment consisted of reduction to the grade of E-1, forfeiture of $673.00 pay per month for two months, extra duty and restriction for 45 days, and an oral reprimand (FG). 5. A MP Report dated 29 June 2008, that indicates the applicant was the subject of an investigation for failure to obey a lawful order or written regulation Article 92 UCMJ IAW FD REG 190-6 paragraph 6d (failure to register and improper storage of a weapon). 6. A MP Report dated 30 June 2008, that indicates the applicant was the subject of an investigation for menacing 2nd NYPL. 7. A Report of Mental Status Evaluation, dated 30 July 2008, which shows the applicant was diagnosed with an adjustment disorder and alcohol abuse (per medical record). However, at that time there was no evidence of a cognitive disorder or a severe mental disease or defect. From a psychiatric perspective, the applicant met retention requirements and commands full capacity. It was determined by Mental Health Services that the applicant was psychiatrically cleared for any administrative action deemed appropriated by the command and the applicant was invited to follow up with Behavioral Health and ASAP services until separation from the Army was complete. 8. Several negative counseling statements dated between 31 March 2008 and 14 July, for driving on post with privileges suspended, disobeying a direct order from a commissioned officer, disobeying a directive from two senior noncommissioned officers, substandard performance, command directed ASAP referral, and initiation of separation action. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided an online application, dated 19 May 2014. POST-SERVICE ACTIVITY: None was provided with the 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. 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, the document and the issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge. 2. The record confirms 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 an Article 15 for violations of the Uniform Code of Military Justice, several military police reports and several negative counseling statements. 3. 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. 4. The applicant contends she received the AGCM and reenlisted two weeks prior to her discharge. She believes she was discharged as a result of a personal vendetta. The applicant’s service accomplishments and the quality of 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 as shown by the repeated incidents of misconduct or by the multiple negative counseling statements and the documented action under Article 15 of the Uniform Code of Military Justice. 5. Furthermore, 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 her discharge was the result of a personal vendetta. 6. The applicant contends both her parents died in the same year and she lashed out; instead of receiving help she was disregarded and discharged. However, 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. Also, it appears the command attempted to assist the applicant in performing and conducting herself to Army standards by providing counseling and by the imposition of non-judicial punishment. The applicant failed to respond appropriately to these efforts. 8. The applicant expressed her desire for an upgrade of her discharge for the purpose of being able to rejoin the military. 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. An RE Code of 3 indicates the applicant requires a waiver prior to being allowed to reenlist. If reenlistment is desired, the applicant should contact a local recruiter to determine eligibility to reenlist. Recruiters can best advise a former service member as to the needs of the military at the time, and are required to process waivers of reentry eligibility (RE) codes if appropriate. 9. 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. 10. 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: Records Review Date: 10 June 2015 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) AR20140008859 Page 2 of 7 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1