RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:      16 October 2007
      DOCKET NUMBER:  AR20060013436


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mr. Luis Almodova                 |     |Senior Analyst       |


      The following members, a quorum, were present:

|     |Ms. Shirley L. Powell             |     |Chairperson          |
|     |Mr. James Anderholm               |     |Member               |
|     |Mr. Joe Schroeder                 |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests reconsideration of her request for, in effect,
the recovery of lost severance pay, cost of living increases, bonuses, and
retirement in pay grade, E-6.

2.  The applicant states, in effect, that the Army Board for the Correction
of Military Records (ABCMR) failed to meet applicable requirements on
clarity and responsiveness when considering her request for a correction of
military records.

3.  Imbedded in her current request to the Board, the applicant states, in
effect the Board erred in denying her a correction to her separation code
because the evidence did not point to more than one alleged positive drug
urinalysis test thus contradicting the applicable regulation and, in
effect, ignoring the definition of "abuse of illegal drugs."

4.  The applicant also now alleges the Board failed to meet applicable
requirements on clarity and responsiveness by contradicting the applicable
regulation wherein it states,". . . action will be taken to separate a
member for misconduct when it is clearly established that rehabilitation is
impractical or unlikely to succeed."

5.  In support of her request for reconsideration, the applicant submits a
four page self-authored brief to the Board and fourteen additional
documents all having a date between 7 November 2001 and 25 October 2005.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
Army Board for Correction of Military Records (ABCMR), in Docket Number
AR20050016344, on 15 June 2006.

2.  The evidence of record shows the applicant who was serving as a
noncommissioned officer, in the Active Guard Reserve (AGR) in pay grade E-
6, tested positive for the use of illegal drugs on 12 December 2000.  She
was processed for separation in accordance with the applicable provisions
of Chapter 14, Army Regulation (AR) 635-200.
3.  AR 635-200 sets forth the basic authority for the separation of
enlisted personnel.  Chapter 14 of the regulation deals with separation for
various types of misconduct, which includes drug abuse, and provides that
individuals identified as drug abusers may be separated prior to their
normal expiration of term of service.  Individuals in pay grades E-5 and
above must be processed for separation upon discovery of a drug offense
(emphasis added).  Those in pay grades below E-5 may also be processed
after a first drug offense and must be processed for separation after a
second offense.  The issuance of a discharge under other than honorable
conditions is normally considered appropriate.

4.  The applicable regulation does not specifically define the word,
"abuse" in the text.  Drug abuse in the context of the regulation is not
defined as multiple uses or more than one discovery of a person's use of
illegal drugs.  As indicated above, drug abuse is the discovery of a
person's one-time use of an illegal drug if they are serving in pay grade E-
5 or above.

5.  After consulting with legal counsel, the applicant requested
consideration of her case by a board of officers.  A board of officers
considered her case and all the relevant evidence pertinent to her
commander's recommendation for her discharge prior to her established
expiration of her term of service and on 17 March 2002 determined she had
abused illegal drugs by testing positive for the use of cocaine, and based
on this finding, she was not desirable for further retention for military
service.

6.  On 2 April 2002, the administrative separation board recommended that
the applicant be discharged from the USAR with a general discharge, with
her service characterized as under honorable conditions.  The board also
recommended the applicant's discharge be suspended for a period of six
months to allow her the opportunity to rehabilitate herself.

7.  As indicated in the original Record of Proceedings, the separation
authority, after reviewing the administrative separation board's record of
proceedings, and considering the advice of his Staff Judge Advocate (SJA),
the chain of command and the matters submitted by her defense counsel,
approved the administrative separation board's findings; however, he
disapproved so much of their recommendation as it pertained to the
suspension of her discharge.  The approval authority, in accordance with
paragraph 2-3, AR 15-6, was neither bound nor limited by the findings or
recommendations of the board.  The appointing authority could take action
less favorable than that recommended by
the board with regard to the respondent, unless the specific directive
under which the board was appointed provided otherwise.  This same
regulation provides that the appointing authority could consider any
relevant information that was not considered at the time the board was
conducted.

8.  It is apparent from the decision made by the appointing authority, a
major general, and as indicated in Section VIII (Action by the Appointing
Authority), of the DA Form 1574, Report of Proceedings by Investigating
Officer/ Board of Officers, that was prepared, post-board action, he felt
the applicant should be discharged for her illegal use of cocaine.
Accordingly, he directed the applicant be discharged, that she be issued a
general discharge certificate, that her service be characterized as, under
honorable conditions.  Accordingly, the applicant was discharged on 17 July
2002.

9.  The applicant's case was considered by the Army Discharge Review Board
(ADRB) on 7 October 2005.  This board found that the authority and reason
for the applicant's discharge were proper and equitable; however, although
it indicated it did not condone the applicant's misconduct, it determined,
based on her overall record of service that the characterization of her
service was too harsh.  The ADRB voted to upgrade the applicant's
discharge and the characterization of her service to fully honorable.  The
ADRB voted not to change the authority and reason for her separation.  The
ADRB also did not make a determination, as is now alleged by the
applicant, that she was wrongfully discharged.

10.  Review of the DD Form 214 issued to the applicant after the ADRB's
consideration of her case shows the authority to be AR 635-200, Paragraph
14-12C(2), a separation code of "JKK," a Reentry Code of "3," and a
narrative reason for separation of "Misconduct."  These data items:  the
authority, the Reentry Code, and the narrative reason for a person's
separation correspond one to the other; therefore changing one may directly
affect the other data items.

11.  Review of all applications submitted by the applicant, whether to the
ADRB or to the ABCMR, failed to reveal that she requested a change to the
reason for her discharge or for a change to the Reentry Code that was
included on her DD Form 214.

12.  Army Regulation 635-5-1 states that separation codes are three-
character alphabetic combinations, which identify reasons for, and types of
separation from active duty.  The primary purpose of a separation code is
to provide statistical
accounting of reasons for separation.  They are intended exclusively for
the internal use of the Department of Defense and the military services to
assist in the collection and analysis of separation data.  It notes that
"JKK" is the appropriate separation code for individuals separated for
Misconduct (Drug Abuse).

13.  Table 2-3 (SPD/RE Code Cross Reference Table), Army Regulation 635-5,
establishes the proper Reentry Codes to assign Soldiers separating from the
Army.  A Cross-Reference Table, provided by officials from the Separations
Branch at the U.S. Army Human Resources Command, confirms that Reentry Code
"3" was the appropriate RE code for individuals who received an SPD code of
"JKK," at the time of her separation.

14.  Documents submitted in support of her request were already considered
by the administrative separation board (i.e., Good Conduct Medal award
orders and character reference letters) or were earned by the applicant
after her departure from military service (certificates for completion of a
variety of self-improvement courses and employee recognition certificates).

DISCUSSION AND CONCLUSIONS:

1.  The applicant was serving as a noncommissioned officer, in the Active
Guard and Reserve (AGR), in pay grade E-6.  She tested positive for the use
of cocaine, an illegal drug.

2.  The applicant was processed for separation according to the applicable
regulation.  Her case was considered by a board of officers.  The board
decided, based on the evidence, she had abused illegal drugs by testing
positive for the use of cocaine, and based on this finding, she was not
desirable for further retention for military service.

3.  The applicable regulation is clear.  It states unequivocally that
individuals in pay grades E-5 and above must be processed for separation
upon discovery of a drug offense (emphasis added).  The applicable
regulation does not specifically define the word "abuse" in the text.  Drug
abuse in the context of the regulation is not defined as multiple uses or
more than one discovery of a person's use of illegal drugs.  A person, by
the contextual definition contained in the applicable regulation, is a drug
abuser at the first discovery they used an illegal drug if they are serving
in pay grade E-5 or above.
4.  The evidence shows the administrative separation board recommended that
the applicant be discharged from the USAR with a general discharge, with
her service characterized as under honorable conditions, and that her
discharge be suspended for a period of six months, to allow her the
opportunity to rehabilitate herself.

5.  On receipt of the separation board's findings and recommendation, the
appropriate authority, a major general, disapproved the recommendation for
her retention on active duty for six months to rehabilitate herself and
directed the applicant's discharge.  He also directed she be issued a
general discharge certificate with her service characterized as under
honorable conditions.

6.  According to the applicable regulation, the approval authority was
neither bound nor limited by the findings or recommendations of the
administrative separation board.  The appointing authority could take
action less favorable than that recommended by the board.  In this case,
he decided, after reviewing the administrative separation board's record
of proceedings and, after considering the advice of his Staff Judge
Advocate (SJA), the chain of command, and matters submitted by her
defense counsel, to not accept the board's recommendation that her
discharge be suspended for six months to allow her time to rehabilitate
herself.

7.  The applicant applied to the ADRB for an upgrade of her discharge
within its statute of limitations.  The ADRB found that the authority and
reason for the applicant's discharge were proper and equitable; however,
based on her overall record of service, it decided that the
characterization of her service was too harsh.  The ADRB voted to upgrade
the applicant's discharge and the characterization of her service to fully
honorable; but, it voted not to change the authority and reason for her
separation.

8.  The applicant applied to the ABCMR for recovery of lost severance pay,
cost of living increases, bonus's, and retirement in the grade of E-6,
based on her contention that she was wrongfully discharged, as evidenced by
the ADRB decision.  The ADRB, it should be noted, did not state or imply in
any way in their Case Report and Directive that the applicant had been
wrongfully discharged.  The ADRB did decide that the characterization of
her service was too harsh and voted to upgrade her discharge from a general
to an honorable discharge.

9.  Since the applicant's discharge was not determined to be "wrongful,"
she was, in effect, appropriately denied the opportunity to complete the
remaining 2 years and 4 months of her 6-year enlistment, and she is
therefore not entitled to
recover lost benefits, retirement, bonus's, increases, etc., that might
have accrued to her in that period of time.

10.  The ABCMR determined that the overall merits of the applicant's case
were insufficient as a basis to amend the decision of the ADRB and denied
her request.

11.  A review of the DD Form 214 issued to the applicant at the time of
her discharge and after the ADRB's consideration of her case shows she
was discharged under authority of AR 635-200, Paragraph 14-12C(2).  The
separation code to be applied to an individual's DD Form 214 who is
discharged for the abuse of drugs is, "JKK."  The corresponding Reentry
Code, according to Table 2-3 (SPD/RE Code Cross Reference Table), Army
Regulation 635-5, at the time of the applicant's discharge, was a Reentry
Code of "3."  The narrative reason applied to a DD Form 214 of a person
discharged under AR 635-200, Paragraph 14-12C(2), is "Misconduct."

12.  The ABCMR, in its initial consideration of the applicant's request,
as now, considered the applicant's pay grade, the length of her service,
the reason for her discharge prior to her normal ETS, and the provision
of the regulation under which she was discharged.  The Board also
considered all available documentary evidence related to the case, to
include:  the administrative separation board's findings and
recommendation; the convening authority's decision which was arrived at
after he reviewed the record of proceedings and considered the advice
given him by his Staff Judge Advocate, the recommendation of the chain of
command, and matters submitted by the applicant's defense counsel; and
the ADRB Case Report and Directive.  The ABCMR also reviewed the
applicant's originally submitted DD Form 149 and the specific requests
made by her.  It is noted that in her application, she only requested
that she be entitled to recovery of severance pay, cost of living
increases, bonuses, retirement in the pay grade E-6, and other benefits,
based on her contention she was wrongfully discharged.  There is no
evidence she requested a change to her Reentry Code or that the narrative
reason for her discharge be changed.

13.  The applicant's claim that she was unjustly denied the opportunity to
complete the remainder of her enlistment and she was entitled to recovery
of lost severance pay, cost of living increases, bonus's, and retirement in
the grade of E-6, and the supporting evidence she submitted were carefully
considered.  However, there is insufficient evidence to support her claim
that she was wrongfully discharged.

14.  The evidence of record confirms the applicant's separation processing
for misconduct (use of illegal drugs) was accomplished in accordance with
the applicable regulation.  All requirements of law and regulation were
met, and her rights were fully protected throughout the separation process.
 Therefore, there being an insufficient evidentiary basis to find her
discharge was improper or inequitable and that she was "wrongfully"
discharged, she is not entitled to the relief she now seeks.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JRS _  __A_____  __SLP___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis to amend the decision of
the ABCMR set forth in Docket Number AR20050016344 dated 15 June 2006.




                                  _____Shirley L. Powell______
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20060013436                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20071016                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |126.0400                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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