IN THE CASE OF:	  

		BOARD DATE:	  14 September 2010

		DOCKET NUMBER:  AR20100009597 


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 correction of her DD Form 214 (Certificate of release or Discharge from Active Duty) as follows:

* Item 23 (Type of Discharge), from "Discharge" to "Retirement"
* Item 26 (Separation Code), from "JKK" to "RBD"
* Item 28 (Narrative Reason for Separation), from "Misconduct - Drug Abuse" to "Sufficient service for retirement"

2.  The applicant states she believes her record is in error because of the following reasons:

	a.  The Army simply failed to process her separation action.  The Army allowed her to serve almost 3 years since the time of her alleged misconduct and the time it took to discharge her.  When her separation action was initiated, she only had 18 years of active service.  It took the separation authority almost 3 years to discharge her and thus allowing her to obtain enough years to qualify for retirement.

	b.  The Army failed to abide by its own regulation regarding rehabilitation.  Army Regulation 600-85 (Army Substance Abuse Program (ASAP), paragraph
4-2, states that first time offenders can be retained provided they show clear potential for both excellent future service and remaining free from substance abuse.  She has proven she had been rehabilitated.  She provided excellent 

service from the date of her incident by the 5 unit urinalyses she passed since her one instance of using an illegal substance.  Despite having her military career hanging in the balance for 2 years, she continued to serve honorably and remained totally committed.

	c.  Her entire chain of command supported her retirement in lieu of a discharge, to include the Chief, Army Reserve/Commander, USARC (U.S. Army Reserve Command).  Additionally, her conduct did not adversely impact good order and discipline nor did it blatantly discredit the Army.  It is unjust to deny her retirement when several other senior officers or noncommissioned officers (NCOs) whose conduct brought discredit to the Armed Forces were allowed to retire (she lists three general officers (GO), two command sergeants major (CSM), and a sergeant first class (SFC) by name).

3.  The applicant provides the following documents:

* DD Form 214 for the period ending 5 February 2010
* Memorandum, Subject: Commander's Report of Separation, dated
18 June 2007,
* DA Form 8003 (Army Substance Abuse Program (ASAP) Enrollment), dated 1 May 2007
* Various memoranda supporting her request for reconsideration for separation
* Multiple character reference letters
* Several internet articles related to misconduct, trial, and/or punishment of various GOs, CSMs, and an SFC

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show she enlisted in the USAR on 10 March 1983 and held military occupational specialty (MOS) 71L (Administrative Specialist).  She served through multiple reenlistments or extension in the U.S. Army Reserve (USAR).

2.  On 21 May 1989, she was ordered to active duty in an Active Guard Reserve (AGR) status.  She subsequently served in various staff and leadership positions in MOS 42A (Human Resources Specialist) and attained the rank/grade of SFC/E-7.  She was assigned to the Army Reserve Retention and Transition Division (AR RTD), Arlington, VA, with duty at the Army Medical Department Professional Management Command, Morrow/Fort McPherson, GA.

3.  On 2 March 2007, she participated in a command-directed urinalysis and her urine sample tested positive for cocaine.

4.  On 12 April 2007, the applicant's immediate commander notified her of his intent to initiate separation action against her in accordance with Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administration Separations), paragraph 14-12c, for a misconduct, commission of a serious offense - drug abuse.  He recommended issuance of a general discharge.

5.  On 12 April 2007, she acknowledged receipt of the separation memorandum and she consulted with legal counsel.  She was advised of the basis for the contemplated separation for misconduct and its effect, of the rights available to her and the effect of any action taken by her in waiving her rights, and the type of discharge and its effect on further enlistment or reenlistment.  She requested consideration of her case by an administrative separation board and personal appearance before such a board.  She also indicated that she understood she could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to her and she could be ineligible for many or all benefits as a veteran under Federal and State laws.

6.  On 1 May 2007, she was command-referred for enrollment into the ASAP at Fort McPherson.

7.  On 18 June 2007, the applicant's immediate commander initiated a commander's report of separation wherein he recommended the applicant be retained in the AGR program.  In the alternative, the immediate commander recommended her separation be characterized as honorable and the discharge be suspended for a period of 1 year.  The commander also remarked that the applicant was enrolled in ASAP and she was attending weekly counseling classes.  She was making every effort to address her substance abuse problems and displayed complete dedication to the Army Reserve and continued to perform at or above standards.  He also stated the applicant's entire chain of command, immediate supervisor through reviewer, to include the Chief of AR-RTD, all understood the severity of her conduct and agreed punishment was warranted, but strongly supported her retention.

8.  On 30 August 2007, an administrative separation board convened at the Army Reserve Medical Command, Pinellas Park, FL, to consider if the applicant committed an act of serious misconduct (illicit use of cocaine) and if so, whether she should be involuntarily separated from military service.  The board found sufficient credible evidence that the applicant committed a serious offense (illegal drugs) and recommended her separation with an under other than honorable conditions discharge.
9.  On 27 September 2007, a military attorney conducted a legal review of the administrative separation board and found it legally sufficient.

10.  On 17 October 2007, by memorandum, the appointing authority (Commanding General, Army Reserve Medical Command) approved the board's findings and recommended approval of the board's recommendation to separate the applicant with an under other than honorable conditions discharge.

11.  On 21 March 2008, she submitted a DA Form 4187 (Personnel Action) requesting voluntary retirement by reason of completing at least 20 years of active service with a desired retirement date of 1 March 2009.  The Deputy, AR RTD recommended approval; however, the Chief, AR RTD did not make a recommendation.

12.  On 5 December 2008, by memorandum, the Commanding General (CG), USARC, Fort McPherson, concurred with the recommendation that the applicant be discharged from the Army with an under other than honorable conditions characterization of service.  He also recommended she be flagged (suspension of favorable personnel action), barred from reenlistment, and action be initiated to terminate her security clearance.  The CG also stated the applicant had submitted a request for retirement with a
1 March 2009 retirement date which was attached for review and a final decision.

13.  On 16 November 2009, the Assistant Secretary of the Army (Manpower and Reserve Affairs) approved the applicant's involuntary separation under the provisions of Army Regulation 635-200, paragraph 14-12c, and directed her discharge with a characterization of service as under honorable conditions (general).

14.  On 8 January 2010, the U.S. Army Human Resources Command, St. Louis, MO, published Orders D-01-090001 discharging her from the USAR, effective 21 January 2010 (amended to 5 February 2010).

15.  Accordingly, she was discharged on 5 February 2010.  Her DD Form 214 shows she was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, with a character of service as under honorable conditions (general).  She completed a total of 21 years, 1 month, and 29 days of creditable active service.  This form also shows the following entries:  Item 23, "Discharge"; item 26, "JKK"; and item 28, "Misconduct (Drug Abuse)."

16.  She submitted the following documents:

	a.  Several requests, both dated and undated, for reconsideration of her separation from the Chief and his Deputy, AR RDT; and the CSM, Army Reserve Careers Division, wherein the authors appealed to the Secretary of the Army to suspend the applicant's discharge, or in the alternative, allow her to retire.  The authors commented on her dedication, professionalism, integrity, and competence.  The authors also agreed she had made a mistake but learned from her mistake, recovered, and continued to Soldier in an outstanding manner.

	b.  Multiple character reference letters from various senior and field grade officers and senior NCOs, wherein the authors commented on the applicant's outstanding performance before and after her incident, work ethics, dedication to duty, knowledge, and expertise.  The authors also agreed that she made a mistake and should be punished; however, she should also be allowed to rehabilitate and be retained in the AGR program.

	c.  Various internet articles related to misconduct, trial, and/or punishment of various GOs, CSMs, and an SFC, who despite their misconduct were allowed to retire.

17.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

18.  Title 10, U. S. Code, section 3914 states that, under regulations to be prescribed by the Secretary of the Army, an enlisted member of the Army who has at least 20, but less than 30, years of service for an active Federal service retirement may, upon his request, be retired.

19.  Army Regulation 635-200, chapter 12, establishes policy and prescribes procedures for retiring enlisted Soldiers for length of service.  It states a Soldier who has completed 20, but less than 30, years of active Federal service may, at the discretion of the Secretary of the Army, be retired at his or her request.  

20.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The purpose of the separation document is to provide the individual with documentary evidence of his or her military service.  It is important that information entered on the form should be complete and accurate.  Chapter 2 contains guidance on the preparation of the DD Form 214.

	a.  Item 23 shows the appropriate term corresponding to the type of separation:  Release from active duty; Discharge; Retirement; Release from active duty and order to active duty in another status; Release from ADT (Active Duty for Training); Release from custody and control of the Army; or Release from ADT and discharge from the Reserve of the Army and return to the ARNG (Army National Guard).

	b. Item 25 (Separation Authority) shows the correct entry from regulations or directives authorizing the separation.

	c.  Item 26 shows the separation code.  The correct entry is obtained from Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) which provides the corresponding SPD code for the regulatory authority and reason for separation.

	d.  Item 28 shows the narrative reason for separation.  This is based on regulatory or other authority and can be checked against the cross reference table in Army Regulation 635-5-1.

21.  Army Regulation 635-5-1 states that the SPD codes are three-character alphabetic combinations, which identify reasons for and types of separation from active duty.  SPD "JKK" is the correct code for Soldiers separating under the provisions of Army Regulation 635-200, chapter 14-12c, by reason of misconduct - commission of a serious offense - drug abuse.

22.  Army Regulation 600-85 governs the ASAP and identifies Army policy on alcohol and other drug abuse, and assigned responsibilities for implementing the program.  Paragraph 4-2 states Article 112a, Uniform Code of Military Justice (UCMJ), specifically prohibits the unlawful use of the following substances: opium, heroin, cocaine, amphetamine, lysergic acid diethylamide (LSD), methamphetamine, phencyclidine, barbituric acid, marijuana, and any compound or derivative of any such substance.  Soldiers who test positive for illicit drugs for the first time will be evaluated for dependency, disciplined as appropriate, and processed for separation within 30 calendar days of the company commander receiving notification of the positive result from the ASAP.  Retention should be reserved for Soldiers who show clear potential for both excellent future service to the Army and for remaining free from substance abuse.  Soldiers diagnosed as drug dependent will be offered rehabilitation prior to separation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her DD Form 214 should be corrected to show she was retired with the appropriate separation code and narrative reason for separation.

2.  The evidence of record shows the applicant committed a serious offense by unlawfully abusing illegal drugs as evidenced by her wrongful use of cocaine.  Accordingly, her chain of command initiated separation action against her.  All requirements of law and regulation were met and her rights were fully protected throughout the separation process.  The applicant’s discharge was appropriate because the quality of her service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.

3.  The applicant's narrative reason for separation and corresponding SPD code were assigned based on the fact she tested positive for drugs and she was subsequently discharged for misconduct - commission of a serious offense - drug abuse.  Absent her misconduct, there was no fundamental reason to process the applicant for discharge.  The underlying reason for her discharge was her commission of a serious offense - drug abuse.  The only valid narrative reason for separation permitted under that paragraph is "Misconduct - Drug Abuse" with a corresponding SPD code of "JKK."

4.  With respect to her arguments:

	a.  The applicant was a senior NCO.  She knew or should have known the use of illegal drugs could result in her involuntary separation.

	b.  As required by the governing Army regulation, she was offered rehabilitation prior to separation; however, this did not negate the fact that her commander had the regulatory responsibility to initiate separation action against her.

	c.  Notwithstanding her otherwise excellent record, multiple strong character reference letters, and the tardiness in handling her separation action, the fact remains she tested positive for and admitted to using illicit drugs (cocaine).  Based on her record of indiscipline, the applicant's service clearly does not merit her retirement.  Although she had completed over 20 years of active Federal service by the time her discharge orders were finally issued, retirement for a Soldier who has completed 20 but less than 30 years of active Federal service is not a right but may be approved at the discretion of the Secretary of the Army.  The Secretary of the Army did not grant the applicant a retirement, and there is insufficient evidence that would warrant this Board overturning the Secretary's decision.

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)                                         AR20100009597



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ABCMR Record of Proceedings (cont)                                         AR20100009597



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