IN THE CASE OF:	  

		BOARD DATE:  10 May 2012

		DOCKET NUMBER:  AR20110021916 


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 reinstatement in the Regular Army and back pay and allowances.

2.  The applicant states the claims and assertions in the reprimand are inaccurate.

3.  The applicant provides a petition prepared by her counsel.

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests the applicant's reinstatement in the Regular Army with entitlement to back pay and allowances and any other relief the Board determines as just and appropriate.

2.  Counsel gives a background of the applicant's service, including her combat tour if duty in Iraq, two tours of duty in Korea, awards and decorations, family status, and the facts surrounding her discharge.  Counsel states the applicant had a history of migraine headaches.  On or about 6 October 2008, the applicant was suffering from a severe headache.  Searching through her old prescription bottles, the applicant found an old bottle of Percocet (acetaminophen and oxycodone) which had been prescribed to her earlier by military medical personnel and took the Percocet.  She subsequently participated in a urinalysis and her urine sample tested positive for opiates (oxymorphone/oxycodone).  Her chain of command imposed nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ).  This was followed by the initiation of separation action against her.  She appeared before an administrative separation board that recommended her discharge with an under honorable conditions (general) character of service.

3.  Counsel argues that her discharge was improper as follows:

* she had medical issues that necessitated the Percocet prescription – she used the drug that was prescribed to her lawfully
* she was not referred to drug abuse assessment or counseling because the command did not think it was necessary
* she fully understood she could not use an expired prescription after receiving the Article 15 – she had no reason to believe the situation would recur
* there was zero likelihood she would be a disruptive Soldier or an undesirable influence in the future
* she deployed to Iraq and twice served in Korea despite her family hardships as a single parent – her performance was excellent throughout her career
* she was not offered any rehabilitation – she was simply caught in a command environment that proclaimed a zero tolerance policy
* she previously had two prior positive tests – one was a verified negative and the other was discarded because of collection irregularities – neither resulted in any adverse action

4.  Counsel provides the following documents on behalf of the applicant:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* affidavit
* DA Form 8003 (Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) Enrollment)
* photographs of the applicant and her son
* complete separation packet
* email exchange regarding the administrative separation board
* letter from the applicant's defense counsel requesting her retention
* administrative separation board proceedings and allied documents (notification, acknowledgement, findings, and recommendations)
* summarized laboratory results and screening data
* DA Form 2627 (Record of Proceedings under Article 15, UCMJ)
* DA Form 4856 (Developmental Counseling Form)
* documents related to the applicant's military and civilian education
* award orders and certificates
* noncommissioned officer (NCO) evaluation reports (NCOER's)

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show she enlisted in the Regular Army on 6 February 1997 and she held military occupational specialty 92F (Petroleum Supply Specialist).  She served through multiple reenlistments in a variety of assignments including in Korea from January 2003 to June 2004, in Kuwait/Iraq from October 2005 to October 2006, and again in Korea from April 2008 through on or about May 2009.

2.  She was promoted through the ranks to sergeant (SGT)/E-5 on 1 August 2003 and to staff sergeant (SSG)/E-6 on 1 November 2005.  She successfully completed the Primary Leadership Development Course and the Basic NCO Course.  Her NCOER's show she served in various leadership positions and she received ratings of "Success" or "Excellence" and "Among the Best" by her raters and "Successful/Superior" by her senior raters.

3.  She was awarded or authorized the Iraq Campaign Medal with two bronze service stars, Army Commendation Medal (2nd Award), Army Achievement Medal (3rd Award), Army Good Conduct Medal (3rd Award), National Defense Service Medal, Global War on Terrorism Service Medal, Korean Defense Service Medal, NCO Professional Development Ribbon with Numeral 2, Army Service Ribbon, Overseas Service Ribbon (3rd Award), Air Assault Badge, and Driver and Mechanic Badge.

4.  On 27 October 2008, the applicant participated in a unit urinalysis and her sample tested positive for oxycodone.

5.  An initial report of investigation by the U.S. Army Criminal Investigation Command, Camp Casey, Korea, shows the First Sergeant, Company D, 302nd Brigade Support Battalion, 2nd Infantry Division, reported the applicant tested positive for the use of oxycodone.  The preliminary investigation determined that during her attendance at the Unit Prevention Leader Course hosted by the Army Substance Abuse program, the applicant tested positive for oxycodone.  She was advised of her rights which she waived and she declined to make a statement.  She did not admit or deny the use of oxycodone.  The investigation further revealed she was not medically cleared to use oxycodone.

6.  On 26 November 2008 at a closed hearing, she accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for wrongfully using oxycodone, a controlled substance.  Her punishment consisted of a suspended reduction to SGT/E-5, a forfeiture of pay, and extra duty and restriction.  She elected not to appeal her punishment.

7.  On or about 16 January 2009, the applicant's immediate commander notified her of his intent to initiate separation action against her for misconduct (commission of a serious offense) in accordance with paragraph 14-12(c) of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  Specifically, the immediate commander cited her wrongful use of oxymorphone.  He recommended issuance of a general discharge under honorable conditions.

8.  On 16 January 2009, the applicant acknowledged receipt of the commander's intent to separate her.  She consulted with legal counsel on 4 February 2009 and she was advised of the basis for the contemplated separation action for misconduct, the type of discharge she could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and the procedures and rights available to her.  She requested consideration of her case by an administrative separation board, a personal appearance before an administrative separation board, and elected not to submit a statement on her own behalf.

9.  She further acknowledged she understood she could expect to encounter substantial prejudice in civilian life if a discharge under honorable conditions were issued to her.  She also acknowledged she understood that as a result of the issuance of a discharge under honorable conditions, she could make an application to the Army Discharge Review Board (ADRB) or the Army Board for Correction of Military Records for an upgrade.  However, an act of consideration did not imply her discharge would be upgraded.

10.  Subsequent to her acknowledgement, her immediate commander forwarded the separation action for misconduct in accordance with paragraph 14-12(c) of Army Regulation 635-200 with a recommendation for the issuance of a discharge under honorable conditions.  The commander recommended the applicant's retention in the service.

11.  On 12 February 2009, the applicant's intermediate commander recommended approval of her discharge with the issuance of an under honorable conditions discharge.

12.  On 11 March 2009, she was notified by memorandum that an administrative separation board would convene to determine if she should be separated from the Army under the provisions of paragraph 14-12c of Army Regulation 635-200. 
She acknowledged receipt of the notice.

13.  On 20 April 2009, an administrative separation board convened to determine if the applicant should be separated from the Army under the provisions of paragraph 14-12c of Army Regulation 635-200 with the applicant and her counsel present.  After considering the evidence before it, the board found the allegation of a commission of a serious offense was supported by the preponderance of the evidence and the findings warranted separation.  Accordingly, the board recommended her separation from the Army with the issuance of an under honorable conditions (general) discharge.

14.  On 2 May 2009, the convening/separation authority approved the findings and recommendations of the administrative separation board and ordered the applicant's discharge with the issuance of a general discharge under honorable conditions.  Accordingly, the applicant was discharged on 30 May 2009.

15.  Her DD Form 214 shows she was discharged under the provisions of paragraph 14-12c of Army Regulation 635-200 with an under honorable conditions (general) character of service.  This form shows she completed 12 years, 3 months, and 25 days of creditable active service.  This form also shows a "3" in item 27 (Reentry Code).

16.  There is no indication she petitioned the ADRB for a review of her discharge.

17.  The applicant and/or her counsel provide:

	a.  a self-authored affidavit, dated 26 October 2011, wherein the applicant recapitulates the events that led to her discharge.  She states that a headache brought severe pain along with bright spots before her eyes.  She was not on duty at the time and she started searching through old prescription bottles for some pain medication.  She found some Percocet which had been prescribed by military personnel.  She took it.  She did not look at the prescription bottle and she did not examine the expiration date.  She was just looking for some relief.  After she tested positive, she told her chain of command what had happened.  She fully accepted responsibility and acknowledged that she should have checked the expiration date.  She was neither sent to drug rehabilitation nor requested to go.  When her commander recommended her separation, he told her he would recommend her retention.  When she went over her pending administrative separation board with her counsel, he did not discuss strategy with her or if she would testify.  She recalls testing positive for codeine in 1999, but she had a prescription for that and the matter was dropped.  She does not recall testing positive for tetrahydrocannabinol, but she recalls at one time the unit urinalysis was messed up and the whole test was thrown out.  She feels the administrative separation board may have been influenced by the earlier tests.  The board ultimately recommended her separation.  She now has no source of income or medical benefits for her son.  The discharge has made it even harder for her to get a job or support for her child.  She does not believe the board's decision was fair.  She knows she used an expired prescription and that she should have gone to the clinic and gotten a new prescription;

	b.  a DA Form 8003, dated 6 April 1999, shows she was referred to the ADAPCP for a codeine test on 4 February 1999.  It was determined that a review of her medical records revealed she had a valid prescription for the controlled substance.  The results were "verified negative" and no further action was necessary;

	c.  a photograph of the applicant in uniform as well as two photographs of the applicant and her son;

	d.  a letter from the administrative board recorder to the immediate commander, dated 3 April 2009, wherein the recorder states that the previous results of the potential positive tests from Fort Campbell and Fort Bragg were untimely and irrelevant since the administrative board is based on the commission of a serious offense;

	e.  email exchanges between a trial defense attorney and her defense counsel in relation to the previous two urinalysis tests;

	f.  a memorandum from her trial defense counsel to the separation authority, dated 23 April 2009, requesting disapproval of the separation and allowing the applicant an opportunity to rehabilitate herself; and

	g.  laboratory results, dated 31 March 2009, confirming that initial screening resulted in a positive reading for opioids on 17 October 2008 and a verification screening resulted in a positive reading for opioids on 20 October 2008.  A confirmation screening resulted in a positive reading for oxymorphone on 22 October 2008.

18.  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 (commission of a serious offense), and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is 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.

19.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing in the Regular Army, U.S. Army Reserve, and Army National Guard.  It states that individuals will be assigned RE codes prior to discharge or release from active duty based on their service records or the reason for discharge.

* an RE-1 applies to Soldiers completing their terms of active service who are considered qualified to reenter the U.S. Army – they are qualified for enlistment if all other criteria are met
* an RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable – they are ineligible unless a waiver is granted

DISCUSSION AND CONCLUSIONS:

1.  The central point of the applicant's contention is that she was improperly discharged.

2.  The evidence of record confirms the applicant committed a serious offense in that she wrongfully used a controlled substance.  As a result, her chain of command initiated separation action against her.  She requested consideration of her case by an administrative separation board, a personal appearance before an administrative separation board, and she elected not to submit a statement on her own behalf.

3.  An administrative separation board subsequently convened and after considering the evidence before it, the board found the allegation of a commission of a serious offense was supported by the preponderance of the evidence and the finding warranted separation.  Accordingly, the board recommended her separation from the Army with the issuance of a general discharge.

4.  The convening/separation authority approved the findings and recommendations of the administrative separation board and ordered the applicant's discharge with the issuance of a general under honorable conditions character of service.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Her discharge is appropriate because the quality of her service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.

5.  With respect to the counsels' arguments:

	a.  Contrary to counsel's contention that the applicant used the drug that was prescribed to her lawfully, at the time she used the controlled substance, she was not medically cleared to do so.

	b.  The administrative separation board did not recommend her retention or her rehabilitative transfer.  The board recommended her separation.  The separation/convening authority was not bound by this recommendation.  Nevertheless, after considering all the facts, the convening/separation authority exercised his authority by approving the discharge.  He was under no regulatory or legal obligation to order her retention or rehabilitative transfer.

	c.  The applicant was an SSG/E-6 in a leadership position.  It is reasonable to presume she was or should have been aware of the command's zero tolerance policy with respect to the wrongful use of drugs.

	d.  The regulation stipulates that a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under paragraph 
14-12c for the commission of a serious offense.  However, the separation authority may direct a general discharge if such were merited by the Soldier's overall record.  It appears both the administrative separation board and the separation authority considered the applicant's years of service, NCOER's, awards and decorations, and combat tour of duty.  Accordingly, she received a general discharge.

	e.  The applicant's loss of a career and subsequent financial difficulties are a natural result of her misconduct.

	f.  The applicant was assigned an RE-3.  An RE-3 does not prohibit the applicant from reentering the service.  The applicant is advised that if she desires to reenter military service, she should contact a local recruiter who can best advise her on her eligibility for returning to military service.  Those individuals can best advise a former service member as to the needs of the service at the time and may process enlistment waivers for the applicant's RE code.

6.  The applicant's discharge was conducted to standard.  It was neither improper nor inequitable.  She was not denied due process.  As such, there is no reason to reinstate her in the Regular Army or pay her any back pay or allowances.


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 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)                                         AR20110021916



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ABCMR Record of Proceedings (cont)                                         AR20110021916



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