IN THE CASE OF:	

		BOARD DATE:	  20 January 2010

		DOCKET NUMBER:  AR20090011570 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that her general discharge under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states, in effect, that there were inconsistencies in the unit-administered drug test given by the Virginia Army National Guard (VAARNG) 29th Division Band in August 2004.  She states that her discharge from the VAARNG has many inconsistencies.

3.  The applicant provides a copy of her National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service); a copy of her NGB Form 22A (Correction to NGB Form 22); a self-authored letter addressed to the Army Review Boards Agency, dated 13 September 2008; five letters from friends and former co-workers attesting to her good character and work ethic; a memorandum for record from the commander of Company B, 2nd Battalion, 319th Regiment, 7th Brigade (Training Support), 80th Division (Institutional Training), U.S. Army Reserve, dated 7 June 2006, accepting her to fill a position in his unit; and a referral letter from the commander of Headquarters Supply Company, 429th Support Battalion (Forward), VAARNG, dated 22 December 2006, for a unit assignment.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests an upgrade of the applicant's character of service from general to honorable, a change to her narrative reason for separation, and a change to her reentry eligibility (RE) code.

2.  Counsel states that the Army failed to comply with its own regulation (Army Regulation 135-178 (Enlisted Administrative Separations), section II) when the applicant was separated with more than 18 years of service, i.e., "Soldiers will not be involuntarily separated without the approval of the Secretary of the Army or his designated representative.  All recommendations for involuntary separation of Soldiers in this category will be sent to Headquarters, Department of the Army for consideration."  Counsel states that the discharge was unduly harsh and that the applicant opines, on this basis, that her character of service should be upgraded to honorable and that her narrative reason for separation and her RE code should be changed.  Counsel states that the applicant contends that her outstanding service and her post-service conduct and accomplishments have been sufficiently creditable to warrant the Board's relief.  Counsel states that Army Regulation 600-85 (The Army Substance Abuse Program), paragraph 9-7, dated 2 February 2009, was not followed when selecting qualified individuals to conduct the drug test and that the individual who conducted the test lacked training and integrity.  Counsel concludes by stating that the applicant had an exemplary record, maintained acceptable enlisted performance evaluations, completed numerous training courses, and received several Army medals.

3.  Counsel provides a 2-page statement, dated 1 December 2009, addressed to the Army Discharge Review Board; a copy of the applicant's NGB Form 22; a letter of support from one of the applicant's former co-workers, dated 17 October 2009; electronic mail, dated 14 June 2005, between two individuals regarding the board hearings of other individuals; promotion orders, dated 22 August 2002; copies of the applicant's DA Forms 1059 (Service School Academic Evaluation Report); a copy of the certificate awarding the applicant an Associate in Science Degree; a copy of the applicant's college transcript; a copy of the applicant's diploma for the Reserve Component Basic Noncommissioned Officers (NCO) Course; a copy of the applicant's NCO Evaluation Report for the period December 1990 through November 1991; and a copy of the applicant's diploma for the Reserve Component NCO Primary Leadership Development Course.

CONSIDERATION OF EVIDENCE:

1.  On 6 October 1986, the applicant enlisted in the VAARNG in Richmond, VA, for 8 years in the pay grade of E-3.  She successfully completed training as an Army band person and she was promoted through the ranks to the pay grade of E-7.

2.  The facts and circumstances pertaining to the applicant's discharge are not on file.  However, the available records show that on 10 November 2005 she was discharged from the VAARNG and as a Reserve of the Army under honorable 
conditions (general) under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-26e(2)a, due to acts or patterns of misconduct.

3.  The NGB Form 22 that the applicant was furnished at the time of her discharge shows that she received an NGB Form 56 (Certificate of General Discharge Under Honorable Conditions from the Armed Forces of the United States of America) and an RE-3 code.

4.  On 13 September 2008, the applicant petitioned the Army Discharge Review Board (ADRB) for a change of her RE code.  The ADRB denied her request on 4 May 2009.

5.  The applicant submitted a letter, dated 13 September 2008, in which she states that she was discharged due to the erroneous conviction of misconduct due to drug use and that the way in which the drug testing was conducted was incorrect.  She states that females in the unit in which she was assigned have never been treated with respect.  She states that she was a good Soldier, attended all the required schools, and maintained her weight.  She states that she was passed over for promotion and that the promotion was given to a male Soldier who was extremely overweight and had not attended any of the required schools.  She states that after being told that her concerns were not important, she reported her concerns to the Inspector General (IG), who refused to do anything.  She, therefore, expressed her concerns to officials at the NGB.  She states that the promotion of the other Soldier was overturned and that she was subsequently offered the promotion which she accepted.  She states that as a result of her actions, the unit made things as hard as they could; the first sergeant never wanted her or any other female promoted above the rank of E-4.

6.  In the letter, dated 13 September 2008, the applicant goes on to provide information pertaining to other Soldiers and their choices to either attend drug and alcohol rehabilitation or be removed from the Army National Guard Band.  She states that in August 2003, the acting commander pulled her and a few other Soldiers aside and announced that there would be a drug test administered that night.  She states that the test was not administered per Army Regulation, that a Soldier who was in rehabilitation for alcohol or drugs administered the test, that the supply room where she was provided a cup and told to provide a specimen was more than 20 feet from the bathroom, and that anyone was allowed to handle the specimens.  She states that the entire process failed to be administered per Army Regulation.  The applicant goes on to state that after calling in the next day because her son had pneumonia, she received a telephone call from a captain telling her that if she didn't report for duty, he would have her picked up by the police.  She states that she was treated poorly and that she was finally requested to take another drug test.  She states that she requested to be released from the unit as a result of the treatment that she received (some sexual in nature); that she was told she would be released; and that she was subsequently moved to Staunton, Virginia, under a different command.

7.  In the letter, dated 13 September 2008, the applicant states that she was later contacted and told that she had a positive drug test and that the Soldier who collected her specimen and another Soldier were telling the whole unit about her drug test, laying out all of the results for everyone to see.  She states that she was degraded and harassed; that she later found out one of the specimens that she provided tested positive and the other tested negative; that during the hearing she requested, she found out that the prosecution called all of her witnesses and told them not to show up for the trial; and that she was ultimately discharged for misconduct.  The applicant states that she has been suffering for 5 years and that she deserves some type of restitution.  She concludes by stating that she would like her discharge upgraded and, if at all possible, to be given back the 3 years that she has missed due to an erroneous decision.

8.  The applicant also submitted five letters from friends and former service members attesting to her good character and conduct while she was in the VAARNG and offering their knowledge of what occurred on the day that the drug test was administered in the unit.  The letters also provide information pertaining to the applicant's scheduled hearing and the attitude of the unit in which she was assigned.

9.  The DA Forms 1059 that the applicant submitted shows she satisfactorily achieved course standards and that she was an honor graduate when she attended the VAARNG NCO Academy in July 1988.  The NCOER that she submitted shows that she received a rating of successful in overall performance and superior in overall potential for promotion.

10.  National Guard Regulation 600-200 provides for the separation of enlisted personnel from the Army National Guard.  Paragraph 8-26e(2) provides for the discharge of Soldiers from the State Army National Guard and/or from the Reserve of the Army.  It states, in pertinent part, that for Soldiers being considered for separation due to acts or patterns of misconduct, an administrative discharge board is required (unless waived by the Soldier) when the Soldier has 6 or more years of total military service or when the separation authority considers discharge under other than honorable conditions appropriate. 
Acts or patterns of misconduct include misconduct – abuse of illegal drugs.  All Soldiers identified as abusers of illegal drugs will be referred for treatment or counseling as appropriate regardless of the commander's intent to take administrative, nonjudicial, or judicial action.  First-time drug offenders in the grade of sergeant and above and all Soldiers with 3 or more years of total military service, regardless of component, must be processed for discharge.  An RE-3 code will be issued.

11.  National Guard Regulation 600-200 also provides that RE codes are determined at discharge.  They provide information concerning the Soldier's service in the Army National Guard of the United States which will be considered upon further reenlistments.  Soldiers will be assigned an RE-3 if the reason for discharge is waivable.

12.  Army Regulation 135-178 (Enlisted Administrative Separations) 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.

13.  Army Regulation 135-178 also 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 CONCLUSIONS:

1.  The applicant and her counsel contend that her discharge should be upgraded to fully honorable, that the authority and reason for separation should be changed, and that her RE code should be changed based on her overall record of service.  The applicant also contends that she should be given 3 years of service that she missed due to the erroneous decision to discharge her from the VAARNG.

2.  The contentions of the applicant and her counsel have been noted.  However, neither the applicant nor her counsel has submitted sufficient evidence to show that the action taken by the Army in her case was incorrect or unjust.

3.  The available records suggest that a specimen that she furnished tested positive for drugs, that a hearing was conducted prior to her discharge, and that the results of the hearing included her being furnished a general discharge.
4.  The supporting letters and the evaluation reports she submitted have also been considered.  However, they are not sufficiently mitigating to warrant the relief requested.  In accordance with the applicable regulation, first-time drug offenders in the grade of sergeant and above and all Soldiers with 3 or more years of total military service, regardless of component, must be processed for discharge.  An RE-3 code will be issued.

5.  Additionally, the applicant has provided no evidence to show that she ever applied for a waiver to reenlist and was denied.

6.  As previously stated, the facts and circumstances surrounding the applicant's discharge are not on file and, in the absence of her discharge packet, it is impossible for the Board to determine if an administrative error was made during the processing of her discharge.  Based on the fact she indicates that a hearing was conducted prior to her discharge and in the absence of sufficient evidence to show that the discharge was inequitable or contrary to law and/or the applicable regulation, it must be presumed that what the Army did in her case was correct.

7.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

8. In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X___  ___X___  ____X____  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 for correction of the records of the individual concerned.



      ___________X______________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20090011570



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090011570



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1