IN THE CASE OF:	

		BOARD DATE:	  17 July 2014

		DOCKET NUMBER:  AR20130015793 


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 the 5 July 2013 decision of the Acting Deputy Assistant Secretary of the Army (ADASA) to involuntarily separate her for misconduct rather than temporary medical retirement be set aside and that she be placed on the Temporary Disability Retired List (TDRL) as of the date of her separation.

2.  The applicant defers her statement to counsel. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant be granted relief in this case.

2.  Counsel states the decision of the ADASA was arbitrary and capricious and lacked equitable consideration.  The result of the Integrated Disability Evaluation System (IDES) process "should have predominated over the elimination process."

	a.  The applicant was an Army veterinarian serving her first tour of duty at Fort Rucker, AL, having arrived on 25 May 2010 after "joining the Army on 
24 May 2010."

	b.  In September  2010, the applicant began suffering from degenerative arthritis of the lumbar spine.  The condition required surgery in 2011, but the surgery was not successful nor was continued physical therapy thereafter.  In July 2012, she underwent a thyroidectomy to remove her cancerous thyroid gland.

	c.  There is no dispute that in her presence on 10 December 2010 her husband committed suicide by shooting himself.  Subsequent to her husband's suicide her mental health condition deteriorated significantly.  Her mental health issues ultimately led to a diagnosis of post-traumatic stress disorder (PTSD) with co-morbid major depressive disorder.

	d.  The applicant described how and why in 2011 she took into her home a lesbian couple, one of whom worked in her veterinary clinic at Fort Rucker as a civilian, Lindsay L______, and one of whom was an enlisted Soldier, Specialist (SPC) Kayla B_______.  The rationale for this arrangement was that it would be symbiotic.  The applicant needed help because of her impairments and the women needed an inexpensive place to stay.

	e.  They lived with the applicant from the end of November until the end of February.  Their departure was not on friendly terms.  After their departure, 
Ms. L______ planted a story with another veterinary clinic employee, Kim, that the applicant was using spice.  Kim disclosed to Sergeant First Class (SFC) S_____ and Major (MAJ) W_____ that an anonymous phone call made to the clinic and U.S. Army Criminal Investigation Command (CID) came from her husband and was prompted by Ms. L_______'s disclosure to Kim.

	f.  After Kim disclosed these matters, MAJ W_____ confronted the applicant who denied spice use and volunteered to take a urinalysis.  That request was declined.  On 7 March 2012, based on the statements by Ms. L______ and 
SPC B_______, the applicant was ordered to take a urinalysis.  The result of this urinalysis, reported on 24 March 2012, was positive for spice.

	g.  On 20 July 2012, an elimination action for a probationary officer was initiated with a recommendation for a general discharge.

	h.  On 10 June 2013, an informal Physical Evaluation Board (PEB) found the applicant physically unfit for duty for PTSD with a 50 percent disability rating and for her back with a 20 percent disability rating.  This yielded a 60 percent disability rating and a recommendation that she be placed on the TDRL.  

	i.  On 5 July 2013, the ADASA disallowed the TDRL determination and confirmed the elimination action.

	j.  It is reasonable to conclude on these facts the applicant was set up by SPC B_______ and Ms. L______.
		(1)  Neither woman reported spice use by the applicant during the period they allegedly saw her using spice from October 2011 to February 2012.  It was only after they were forced out of the house that they spoke to anyone about her supposed spice use.

		(2)  Instead of going to authorities, they asked Kim to make or have her husband make an anonymous phone call regarding the applicant's spice use.  They did this immediately after leaving the house.  This would at least help to assure that a drug test would be positive if one were administered.

		(3)  The applicant volunteered for a drug test upon hearing of the allegations and permitted her truck to be searched at the request of CID.

		(4)  There was no indication of spice use apparent to any coworker.

		(5)  The women who lived with the applicant had both motive to lie and motive to harm the applicant.

		(6)  Counsel points out apparent discrepancies with the receipts for purchases made on 27 September 2011.  He states "something is not right with the spice purchase."

		(7)  Allegations made by Ms L______ and SPC B_______ that the applicant smoked spice while at Gulf Shore, AL, are specifically rebutted by the applicant's friend who was there.

	k.  There is no doubt that the drug test revealed the presence of spice in the applicant.  How it got there is in issue.  There is evidence which allows one to conclude that Ms. L______ and SPC B_______ had motive to give the applicant spice in retaliation for their summary dismissal from her home.  The purchase of spice at Galaxy Enterprises in Atlanta is a highly suspect transaction.

	l.  Assuming a worst case scenario that the applicant did knowingly utilize spice, the question then becomes, is it proper to cause this misconduct to predominate over her medical condition?

	m.  For more than a decade now our young men and women have been returning from combat with PTSD.  It is known to all who deal with this disorder that self-medication with drugs and alcohol is common.  Yet those not willing to understand treat such alcohol and drug use as acts of criminality when what in reality is required is treatment.  

	n.  The applicant watched her husband commit suicide with a gun.  She suffers from PTSD as a result.  She was not medicated for her PTSD.

3.  Counsel provides a seven-page brief with 19 enclosures.

CONSIDERATION OF EVIDENCE:

1.  On 15 August 2008, she was appointed a second lieutenant Reserve commissioned officer.  On 24 May 2010, she was appointed a captain (CPT) in the Regular Army and ordered to active duty.  On 4 June 2010, she was assigned to the Gulf Coast Veterinary Clinic, Lyster Army Health Clinic, Fort Rucker, AL.

2.  On 5 March 2012, SPC Kayla B_______, assigned to the 6th Military Police Detachment, Fort Rucker, AL, made a sworn statement at the Fort Rucker CID office.

	a.  During late September or early October 2011, she, the applicant, and 
Ms. L______ went to Fort Stewart, GA, for an appointment the applicant had for her thyroid.  After the appointment, they stopped and the applicant bought spice. While driving back to Enterprise, AL, she smoked spice while traveling in the government owned vehicle (GOV) she had been issued to make the trip.

	b.  On 21 October 2011, she, the applicant, and Ms. L______ went to Tallahassee, FL, for a concert.  They drove around again until the applicant could find a store where she could buy some spice.  Right before they left, the cashier told them "you guys better watch her while she smokes this shit, it's strong."

	c.  She and Ms. L______ moved in with the applicant to take care of her after her back surgery.  She would sit there at her computer desk, play an online game, and smoke her spice.  After a few days she moved her computer upstairs and again, that was all she did.  She knew this because she talked about it and there was a very strong odor of it.

	d.  On a 4-day weekend (she didn't remember the dates), they went to Gulf Shores, AL, to meet up with one of the applicant's friends, Ms. Victoria F_____ and when they got there the two of them went out on the patio of the condo and smoked something.  She wasn't sure whether it was spice or marijuana, but she saw them take a cigar wrapper, put some sort of substance inside of it and roll it to smoke it.

	e.  She and Ms. L______ had been living with the applicant for 4 months and the applicant smoked continuously.  They ended up moving out of the residence on 21 February 2012, because they could not bear to be around this type of lifestyle any longer.  The applicant and Ms. L______ worked together at the Fort Rucker Veterinary Clinic so when they left on bad terms with her, the applicant was offended.

	f.  When asked why she waited until now to report this she stated they were all friends and since Ms. L______ worked with the applicant, they didn't know if it would come back to affect Ms. L______ in a negative way.

3.  On 5 March 2012, Ms. Lindsay L______, a civilian employee at the Fort Rucker Veterinary Clinic, made a sworn statement at the Fort Rucker CID office.

	a.  The first time she saw the applicant smoke spice was on Columbus Day weekend, 7-10 October 2011 when she spent the weekend in Gulf Shores, AL, with her and two friends.  The applicant and her friend went onto the porch at least 5-6 times every day to smoke spice.  They offered for her to participate but she declined.  

	b.  About the middle of October 2011, she and SPC B_______ accompanied the applicant on a trip to Fort Gordon or Fort Stewart for an overnight medical appointment.  She was authorized to travel on temporary duty (TDY) and given a GOV.  After the appointment they spent about 2 hours driving around looking for a store that would sell spice.  The applicant purchased approximately $150.00 worth of spice and paraphernalia from a store called Starship Galaxy with a green Regions Bank debit card.  The applicant stated she used this bank account to make her spice purchases because she wasn't sure if her USAA account was monitored for those kind of purchases.  The applicant smoked spice twice in the GOV on the drive home.

	c.  Between October and the middle of November there were numerous occasions where she would visit the applicant and she would be sitting in front of her computer in the living room smoking spice.

	d.  She and SPC B____ moved in with the applicant at the end of November 2011 and the applicant's drug abuse became very apparent.  The applicant started smoking from the minute she got home from work to the minute she went to bed and all day every day on the weekends.  Another instance occurred in December 2011 when they went to a concert in Tallahassee, FL.  They drove around for an hour looking for a store that sold spice.

	e.  In a single instance, on 23 January 2012 the applicant sent her a text message asking if she would bring tramadol home for her because the painkillers she had were not helping with her back pain that day.  She told her to put them on her account at the vet clinic under one of her dog's names.  She took home 
30 tramadol pills from the vet clinic.

	f.  When asked why she waited so long to report this to authorities, 
Ms. L______ stated the applicant was her friend and she felt a sense of loyalty and she knew what kind of person she was and thought it would have professional consequences.

4.  On 6 March 2012, SFC S_____, assigned to Public Health Command - Fort Gordon, Fort Rucker, AL, made a sworn statement at the Fort Rucker CID office.

	a.  On 29 February 2012, he received an anonymous phone call from a gentleman stating that someone told him that they observed the applicant used the drug called spice.  The caller stated he had previously called CID and they did not seem to be doing anything about it so he wanted to call the applicant's unit.  He took the information and spoke to MAJ W_____, the applicant's supervisor about it.  

	b.  MAJ W_____ and he called the Fort Rucker Judge Advocate General (JAG) office and informed them of the details of the anonymous call.  JAG advised them they should not administer a urinalysis based on hearsay.  

	c.  On 1 March 2012, SFC S_____, the applicant, and Sergeant (SGT) A_______ (Veterinary Clinic noncommissioned officer in charge (NCOIC)) met to discuss the dysfunction of the clinic as they were told one of the civilian workers (Kim), the receptionist at the veterinary clinic, was very upset and did not want to continue working that day because there was too much tension and gossiping from another co-worker (Ms. L______).  Ways to limit the gossip and tension were discussed.

	d.  Kim called SFC S_____ and stated Ms. L______ told her that the applicant was using the drug called spice.  Kim told her spouse and he was the one who had made the anonymous phone call.  Kim stated that she was upset and nervous about having the applicant see her pet in clinics if she was using drugs that could place her pet in danger, and she and her spouse wanted something done.

	e.  When asked if any Soldiers assigned to the clinic informed him the applicant smoked spice he stated no.

	f.  When asked if any civilian employees who work for the clinic informed him the applicant smoked spice he stated Kim, the receptionist, told him someone told her the applicant smoked spice or used other drugs.

	g.  When asked if he had heard any discussion from anyone in the veterinary clinic regarding the applicant using drugs he stated that other than Kim, he had not had any other discussions.

5.  On 6 March 2012, MAJ W_____, assigned to Public Health Command District, Fort Gordon (Fort Rucker), made a sworn statement at the Fort Rucker CID office.

	a.  On 29 February, she was told by SFC S______ that he had spoken with a male anonymous caller who stated he was told by someone that they had witnessed the applicant smoking spice in her home.  He stated they had already called CID and were calling us now and if we did not do anything they would call the installation commander.  

	b.  MAJ W____ and SFC S_____ were advised by legal that an anonymous call from someone who says they were told something is hearsay and not grounds for a search and seizure urinalysis.

	c.  MAJ W____ advised the applicant of the anonymous phone call that she had been seen smoking spice.  The applicant denied the allegations and stated that she believed the call was from a civilian employee, Lindsay, who was upset with her.  She stated that Lindsay and an enlisted Soldier friend of hers had moved in with her prior to her back surgery and they had moved out (or she kicked them out) a couple of days prior.  The applicant sounded extremely sincere and was moved almost to tears.  She stated that she does not do drugs; however, she had/has a friend that smokes it who Lindsay witnessed smoking during some personal trip.  She stated she would take a urinalysis to prove her innocence.

	d.  MAJ W____ advised the applicant a hearsay call is no reason to make her take a urinalysis.  She told the applicant at this point she did not have to take a test and recommended not taking a test if she doesn't have to.

	e.  She told the applicant she needed to consider her actions and the fact that as an officer and leader, sometimes people may want to find things to use as leverage against her in order to make her look bad.  She also told her that she needed to always do the right thing and that she did the right thing by removing them from her home.

	f.  The next day, the applicant and SGT A_______ came by to discuss Lindsay's behavior at work.  They told her, with SFC S_____ present, that Lindsay had been witnessed participating in workplace gossip telling another civilian employee something about the applicant having to take a "pee test."  The other civilian employee (Kim) was so upset from the gossiping, which was "all day" for a long time, that she wanted to quit.  

	g.  MAJ W____ recommended looking at removing Lindsay on a grounds of creating a toxic work environment and not adhering to previous counsel.  She advised them to initially reduce the number of work hours in order to allow less time to spend in the clinic and cause problems.  

	h.  On 2 March, MAJ W____ received a call from the applicant telling her she had to make a police report against Lindsay for coming by her home while she was at work and making threats against her to a friend who was at her home at the time.  She said she was yelling things like she's was going to make her fall, etc.  She told the applicant that Lindsay's action further justified her removal from the workplace.

	i.  On 4 March, she received a call from Kim asking for a meeting.  When she met with Kim, she admitted it was her husband who had been the anonymous caller and that she had asked him to make the call.  Kim stated she had been told for a long time about action with the applicant and after being told that the applicant frequently did drugs, she was scared for the welfare of the patients in the clinic.  When asked if she or her husband had witnessed the applicant take drugs, she said no and was very apologetic for making the call.  Kim stated she had observed behavior that was unbecoming of a CPT, such as not making call-backs to clients in the clinic and frequently being out of the clinic for unknown reasons.  She also stated the applicant called her at home after hours and told her not to tell about the other employee moving in with her.  She stated the applicant had told her about the MAJ discussing the anonymous call with her.  She felt torn with all the conflict in the clinic and was worried about her hours being reduced and falsely receiving negative counsel.  MAJ W____ told Kim to discontinue any personal conversation outside of workplace issues with the applicant or anyone else and to focus on work.  

	j.  MAJ W____ made plans to visit the clinic to review the schedule and to more closely monitor the applicant's accountability.  On 5 March, she called her commander, COL R______, to give him an update of all the events.  She told him of her plan to counsel the applicant on standards of conduct and fraternization and consider removing the civilian employee (Lindsay).  She told him that the applicant volunteered to take a urinalysis and she told her she didn't have to at the time.  COL R______ recommended going ahead with the consent urinalysis and counsel.  

	k.  MAJ W____ stated she had not personally witnessed any questionable behavior displayed by the applicant, who worked competently as a veterinarian.  She had been her rater since June 2011.  She knew the applicant had multiple medical issues and suffered from chronic back pain.  The applicant did state that she was worried that someone would try to make allegations against her for misuse of her pain medications, and that she only took them as needed.  She had never witnessed the applicant appearing to be under the influence of anything.

6.  On 7 March 2012, the applicant was ordered to take a urinalysis as part of a CID investigation.  The presence of the synthetic cannabinoid JWH-018 N-COOH (JWH-018 N-pentanoic acid) (spice) was confirmed in her urine.

7.  On 18 April 2012, Ms. Lindsay L______, a civilian employee at the clinic, made an additional sworn statement at the Fort Rucker CID office.

	a.  On 12 April 2012, she went to speak to Staff Sergeant (SSG) O______ about an incident that occurred on 8 April 2012 between her and the applicant.  SSG O_____ was already aware of the incident and had taken appropriate measures and contacted Kayla's chain of command.  When she asked him why he was pursuing the incident, he told her that he was trying to make everything go away but because they continued to stir the pot, he could not ignore things anymore.

	b.  She told SSG O______ that she had some regrets over coming forward with the information she had because of the drama and backlash that followed, but for the most part, she was glad she had gone to the authorities because the applicant needed to be held accountable for her actions.  SSG O______ agreed and said it probably would have been better if she had never said anything at all. 

	c.  SSG O______ told her when she was re-hired he volunteered to take over as her supervisor because of the issues she was having with other military personnel in the clinic.  He told her that they knew when they re-hired her that it was more than likely going to cause a hostile environment and that the applicant was moved to prevent any further issues.  He told her that as long as she was at the clinic, the applicant could not be and vice versa.

8.  On 17 July 2012, Major General (MG) C__________ imposed a Article 15 on the applicant for:
* wrongfully sharing living accommodations, other than those directed by operational limitations, with an enlisted Soldier and a civilian subordinate
* wrongfully using a GOV to facilitate the purchase of spice
* wrongfully using spice, a Schedule 1 controlled substance on 7 October 2011 at or near Gulf Shores, AL
* wrongfully using Spice on or about 27 February 2012 and 7 March 2012  at or near Enterprise, AL
 
She was found not guilty of obtaining a controlled substance by fraud, misrepresentation, subterfuge, or by the concealment of a material fact on 
23 January 2012.  This charge was crossed out on the DA Form 2627 (Record of Proceedings Under Article 15, UCMJ).  The applicant did not appeal the punishment imposed.

9.  On 20 July 2012, MG C__________ notified the applicant he was initiating elimination action and that she was required to show cause for retention on active duty under the provisions of paragraph 4-2b of Army Regulation 600-8-24 (Officer Transfers and Discharges), due to her acts of misconduct, moral or professional dereliction or in the interests of national security.  

	a.  The specific reasons for elimination were:

* an investigation revealed that the applicant was sharing living 	accommodations with both an enlisted Soldier and a civilian 	subordinate, violating paragraph 4-14(c) of Army Regulation 600-20 	(Army Command Policy and Procedures)
* sworn statements later revealed she used a GOV to facilitate the 	purchase of spice, a schedule one controlled substance
* additional investigation revealed she improperly obtained prescription 	drugs from the animal clinic on 23 January 2012
* she was observed using spice, a schedule one substance, in Gulf 	Shores, AL, on 7 October 2011, and later failed a command directed 	urinalysis

	b.  MG C__________ advised the applicant she could have the assistance of an officer of the Judge Advocate General's Corps appointed as counsel or seek civilian counsel of her own selection and at her own expense to prepare a written statement indicating any pertinent facts or any rebuttal bearing on the question of her elimination.  

	c.  MG C__________ also advised the applicant he was recommending she be discharged and that her service be characterized as general, under honorable conditions.  He advised her she could confer with her counsel for legal advice concerning her options to:

* submit a rebuttal with all supporting documentation to show how she 	has either successfully overcome the reason for the show cause 	proceeding or a statement explaining her past actions/behavior
* submit her request for resignation in lieu of elimination

10.  On 29 August 2012, the applicant submitted a statement concerning her elimination action.

	a.  She described marital problems she and her husband were having after arriving at Fort Rucker.  She told him she was contemplating divorce.  He agreed to find a job while she attended the Basic Officer Leader Course (BOLC) in San Antonio, TX.  

	b.  After she completed BOLC, her husband had not found employment and moved out of the family camper.  On 3 December 2010, she told him it was not going to work out for them and she was going to proceed with the divorce.  Later that evening she found him standing in her yard and he threatened to set the camper on fire while she was inside.  She called 911 and filed a report.

	c.  On 10 December 2010, he called her at work and begged her not to divorce him.  Later in the evening, he called her and told her he was going to commit suicide.  He was standing outside in the yard and she called 911 and informed them he was suicidal and would probably have a gun.  As soon as the police arrived she heard a gunshot.

	d.  Ever since she saw her husband commit suicide she has been having a very tough time coping.  She began to see Behavioral Health and they prescribed medication to deal with the nightmares and emotions that she was going through.

	e.  In 2011, she began to have problems with feeling isolated, especially due to all of the recent events.  During the spring and summer of 2011, her back pain began to increase and her health seemed to rapidly decline.

	f.  After further examination she was informed the only relief for her back pain would be going through surgery.  Due to the recovery time and her inability to care for herself during this time she contacted her family, but they were not able to assist her.  Lindsay L______, who worked in the veterinary clinic with her, was in a rough situation due to her living situation and she wanted to help.  This seemed to be an opportunity for each of them to assist each other.  
	g.  Around January to February 2012, she began to return to work and no longer needed living assistance.  She noticed that Ms. L______ had made no effort to find a more permanent residence.  She informed Ms. L______ their living arrangement was temporary and she needed to find a place of her own.  This angered Ms. L______ and she began to retaliate against her at work.  She also began making it very difficult in her relationships with her friends and family by lying to them about one another.

	h.  On approximately 2 July 2012, she had surgery for her thyroid.  After 
3 days in the hospital she was told she had papillary thyroid carcinoma, which is a form of cancer.  The doctors then had to complete a second surgery to remove the entire gland.  They informed her that it would take quite some time due to the follow up treatments, i.e., thyroid regulation, healing, cancer treatments.  She had just recently returned from her first round of cancer treatment and there would be many more to come in the near future.

	i.  Due to her medical issues she had been referred to a medical evaluation board (MEB) to be medically retired from the Army.  She asked that she not be involuntarily separated and that she be allowed to continue with the MEB process.  If not medically retired, she would not be able to afford the treatments she would require for the foreseeable future and no insurance company would want to insure her without an exorbitant amount of money.

11.  On 5 September 2012, the Staff Judge Advocate, a lieutenant colonel, submitted a review of the initiation of elimination of the applicant.

	a.  Former roommates of the applicant reported to CID that the applicant was using an illegal controlled substance.  Investigation revealed the applicant had been sharing living accommodations with both an enlisted Soldier and a civilian subordinate in violation of Army Regulation 600-20, paragraph 4-14(c).  

	b.  Sworn statements later revealed the applicant had used a GOV to facilitate the purchase of spice, a schedule one controlled substance.

	c.  Additional investigation revealed the applicant improperly obtained prescription drugs from the animal clinic on 23 January 2012.

	d.  The applicant was observed using spice, a schedule one controlled substance in Gulf Shores, AL, on 7 October 2011, and later failed a command directed urinalysis.

	e.  On 17 July 2012, MG C__________ imposed an Article 15 on the applicant.  On 20 July 2012, MG C__________ initiated elimination proceeding pursuant to paragraph 4-2b of Army Regulation 600-8-24.  On 30 August 2012, the applicant submitted matters for rebuttal.

	f.  The applicant was a probationary officer and was not entitled to a board of inquiry, unless an under other than honorable characterization of service is recommended.

	g.  The Staff Judge Advocate recommended the general recommend a general, under honorable conditions discharge to the U.S. Army Human Resources Command (HRC).

12.  On 5 September 2012, MG M_____ provided a memorandum to Commander, HRC, subject: Officer Elimination Action for (the applicant).

	a.  MG C__________ initiated elimination action against the applicant due to acts of personal misconduct, moral and professional dereliction, and in the interest of national security.

	b.  After careful consideration of her case, to include her rebuttal matters, he recommended the applicant be discharged with a characterization of service of general (under honorable conditions).

13.  On 10 June 2013, an informal PEB was convened.

	a.  The PEB found the applicant physically unfit for the following conditions:

		(1)  PTSD with co-morbid major depressive disorder.  This condition began in December 2010 while stationed at Fort Rucker, AL, and was associated with marital problems, her husband's suicide by gunshot wound to the chest, and occupational problems.  Despite multiple treatment modalities, including medications, psychotherapy, and profile modifications, the applicant's impairment persisted.  A disability rating of 50 percent was recommended.

		(2)  Degenerative arthritis of the lumbar spine.  The applicant experienced insidious onset of this condition in September 2010 while stationed at Fort Rucker.  Despite multiple treatment modalities, including medications, surgery, physical therapy, and rest, the applicant's impairment persisted.  A disability rating of 20 percent was recommended.

	b.  A combined disability rating of 60 percent was recommended with placement on the TDRL because the applicant's disability was not sufficiently stable for final adjudication from a disability percentage perspective.
	c.  This case was adjudicated as part of the Integrated Disability Evaluation System (IDES) and the applicant's condition and the disability percentage was determined by the Department of Veterans Affairs (VA).

	d.  The disposition recommendation was determined by the PEB based on the VA disability rating proposed and applicable statues and regulations for the Physical Disability Evaluation System (PDES).

	e.  The applicant concurred with the PEB finding and recommendation and waived a formal hearing of her case.  She did not request reconsideration of her VA ratings.

14.  On 18 June 2013, orders were issued transferring her to the TDRL effective 
1 September 2013 with a 60 percent disability.

15.  A DD Form 214 (Certificate of Release or Discharge from Active Duty), signed by the applicant on 1 July 2013, shows she was to be retired on 
31 August 2013 and placed on the TDRL (Enhanced) the following day.  The DD Form 214 contained the following information:

* item 9 (Command To Which Transferred) - "USAR CON GP (RET) 1600 Spearhead Division Ave. Ft Knox, KY 40122"
* item 12b (Separation Date This Period) - "2013 08 31"
* item 12c (Net Active Service This Period) - "0003 03 07"
* item 23 (Type of Separation) - "RETIREMENT"
* item 24 (Character of service) - "HONORABLE"
* item 25 (Separation Authority - "AR 635-40, CHAP 4"
* item 26 (Separation Code) - "SEK"
* item 28 (Narrative Reason For Separation) - "DISABILITY, TEMPORARY (ENHANCED)"

16.  A memorandum, dated 5 July 2013, from the ADASA to the Commanding General, HRC, subject: Probationary Officer Elimination/PEB Case of (the applicant) indicated a Department of the Army Ad Hoc Review Board had reviewed the applicant's case.  The ADASA also reviewed the PEB Proceedings. 

	a.  The ADASA determined the applicant was to be involuntarily eliminated from the U.S. Army with a general (under honorable conditions) characterization of service.  The elimination was based on misconduct and moral or professional dereliction (Army Regulation 600-8-24, paragraph 4-2b).

	b.  The ADASA determined the command did not violate the limited use policy set in Army Regulation 600-85 (The Army Substance Abuse Program).  A urinalysis was directed by the commander based upon probable cause.  CID was investigating the applicant for illegal drug use prior to the urinalysis.  The commander had received reports from individuals who had observed the applicant's illegal drug use.

17.  On 10 July 2013, her orders for transfer to the TDRL were revoked.  Orders were issued discharging her from the Regular Army effective 24 July 2013.  Authority for discharge is shown as Army Regulation 600-8-24.

18.  On 19 August 2013, a DD Form 215 (Correction to DD Form 214) was issued correcting the following items on the DD Form 214 with a separation date of 31 August 2013:

* item 9 - N/A
* item 12b - "2013 07 24"
* item 12c - "0003 02 01"
* item 23 - "DISCHARGE"
* item 24 - "UNDER HONORABLE CONDITIONS (GENERAL)"
* item 25 - "AR 600-8-24, PARA 4-2B"
* item 26 - "JNC1"
* item 28 - "UNACCEPTABLE CONDUCT//NOTHING FOLLOWS"

19.  Counsel provided an unsigned, undated statement from Victoria F_____.  She stated she, the applicant, Ms. L______, and SPC B_______ met at a condo on the night of 7 October 2011.  The applicant mentioned her roommates were bringing liquor so she stopped at a gas station and picked up a strawberry cigar which she liked to smoke when she had a drink.  They all began to drink and she stepped on the balcony to smoke her cigar that had no type of illegal drug in it.  The applicant stayed with her the entire time.  She did not do drugs because it was not worth losing her job.  She also had never seen the applicant try any type of illegal drugs in her presence.

20.  Counsel provided an unsigned statement, dated 18 July 2012, from Dr. Tara W______-S____ to MG C__________.  She stated the applicant had been through more struggles than most people their age can even imagine.  Even through the pain and heartbreak, she continued to exemplify strength.  This strength comes from her character, not drugs or alcohol.  The applicant was always the first one to step up to help someone when needed.  She allowed two women, whom she did not know much about, to rent a room in her home because she could not see someone in need go without.  She firmly believed that further investigation is warranted into the women making these claims against the applicant and strongly discourage the general from making a decision based on the accounts of the two misguided individuals.
21.  Counsel submitted an undated statement from SGT A_______ NCOIC, Fort Rucker VTF.  He stated the applicant had been one of the best officers-in-charge he had worked with.  She was dedicated to taking care of her Soldiers, employees, and her job.  When Lindsay L______ was continually complaining about her roommate and housing situation the roommate moved out leaving her in a financial bind.  The applicant allowed Lindsay to rent a room in her home so that she could regroup and find another place to live.  While serving with the applicant it was obvious that she believed in the Army values.

22.  Army Regulation 600-8-24 prescribes discharge functions for all officers on active duty for 30 days or more.

	a.  Paragraph 1-5 states the Deputy Assistant Secretary of the Army–Review Boards (DASA–RB) will act as the Secretary of the Army’s designee in probationary officer eliminations, resignations, and discharges in lieu of elimination, resignations for the good of the service in lieu of court-martial, and Boards of Review in accordance with a delegation of authority by the Secretary of the Army.

	b.  Paragraph 4-2 (Reasons for elimination) lists conditions under which elimination action may be initiated.  Among the conditions listed, in paragraph 
4-2b, is misconduct, moral or professional dereliction, or in the interests of national security.

	c.  Paragraph 4-20 defines a Regular Army officer who has fewer than 
5 years of active commissioned service as a probationary officer.

23.  Army Regulation 600-20 states in paragraph 4-14c that certain types of personal relationships between officers and enlisted personnel are prohibited. Prohibited relationships include shared living accommodations other than those directed by operational requirements.

24.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.  Paragraph 4-4 (Commissioned or warrant officers who may be separated under other than honorable conditions) states:

	a.  A commissioned or warrant officer will not be referred for disability processing instead of elimination action (administrative separation) that could result in separation under other than honorable conditions.  Officers in this category who are believed to be unfit because of physical disability will be processed simultaneously for administrative separation and physical disability evaluation.

	b.  Commanders exercising general court-martial authority will ensure that the foregoing actions processed together are properly identified and cross-referenced.  The administrative separation will be forwarded to Commander, 
HRC.

	c.  The Commander, HRC, will refer the entire file, including both courses of action, to the Office of the Secretary of the Army, ATTN: SAMR–RB, Washington DC 20310–3073 for necessary review.  The SA will decide the proper disposition of the case.

25.  Department of Defense Instruction (DODI) 1010.01 (Military Personnel Drug Abuse Testing Program) defines synthetic cannabinoid as a chemical compound which has stimulant, depressant, or hallucinogenic effects on the central nervous system substantially similar to the controlled substance tetrahydrocannabinol found in marijuana - a Schedule I compound.

26.  The National Institute on Drug Abuse provides the following concerning spice:

	a.  "Spice" refers to a wide variety of herbal mixtures that produce experiences similar to marijuana (cannabis) and that are marketed as "safe," legal alternatives to that drug.

	b.  The Drug Enforcement Administration (DEA) has designated the five active chemicals most frequently found in Spice as Schedule I controlled substances, making it illegal to sell, buy, or possess them.  Manufacturers of Spice products attempt to evade these legal restrictions by substituting different chemicals in their mixtures, while the DEA continues to monitor the situation and evaluate the need for updating the list of banned cannabinoids.

	c.  Spice users report experiences similar to those produced by marijuana—elevated mood, relaxation, and altered perception—and in some cases the effects are even stronger than those of marijuana.  Some users report psychotic effects like extreme anxiety, paranoia, and hallucinations.




DISCUSSION AND CONCLUSIONS:

1.  Counsel contends it was reasonable to conclude the applicant was set up by Ms. L______ and SPC B_______ because they only reported her use of spice after they were forced to move out of the house.  However, it is also logical to conclude they would not report her use of spice while still living under the same roof, thereby exacerbating an already bad situation.

2.  Counsel contends that something "is not right" with the receipts concerning the purchase of spice on 27 September 2011.  However, the applicant was never charged with purchasing spice.  One of the charges against her on the Article 15 was using a GOV to facilitate the purchase of spice.  One of the reasons for elimination was using a GOV to facilitate the purchase of spice.  There was no mention that she purchased spice.  Who actually purchased the spice is not shown.

3.  Counsel contends Ms. L______ and SPC B_______ had motive to give the applicant spice in retaliation for their summary dismissal from her home.  However, he does not indicate how they gave it to her. 

4.  Apparently CID had sufficient cause to initiate an investigation into allegations of the applicant's use of spice.  The CID investigation was not available for review.  As part of the CID investigation, the applicant was ordered to take a urinalysis and she tested positive for spice.  The applicant was a CPT in the U.S. Army and knew that use of spice was in violation of regulations.  

5.  It is a violation of Army regulations for officer and enlisted personnel to share the same accommodations unless directed by operational requirements.  In addition, one of her subordinates at the clinic was also living with her. 

6.  The evidence shows the applicant was properly and equitably discharged in accordance with regulations in effect.  The type of discharge directed and the reasons for separation were equitable and appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize her rights.

7.  Her elimination action and her PEB were processed in accordance with Army Regulation 635-40 and forwarded to ADASA for final determination.  After considering her medical conditions and her misconduct, the ADASA determined she would be involuntarily eliminated from the U.S. Army with a general (under honorable conditions) characterization of service.

8.  Counsel contends the ADASA's decision was arbitrary and capricious.  However, he provided no evidence to support this contention.

9.  In view of the above, there is an insufficient basis to provide relief in this case.

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)                                         AR20130015793



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ABCMR Record of Proceedings (cont)                                         AR20130015793



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