IN THE CASE OF:	  

		BOARD DATE:	 28 October 2014 

		DOCKET NUMBER:  AR20140005405 


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, under honorable conditions discharge be upgraded to honorable and that her narrative reason for separation be changed from "Misconduct (Serious Offense)" to a more favorable entry.

2.  The applicant states she would still be serving in the Army today if she had been given proper time to fight her discharge.  She had a spotless record prior to the incident resulting in her discharge.  Additionally, no drug tests were ever administered to prove the allegations against her.  She has never shown signs of addiction or abuse.  

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 4 October 2010 and held military occupational specialty 15Y (AH-64 Armament/Electrical/Avionic Systems Repairer).  

2.  Her record includes a DA Form 4856 (Developmental Counseling Form) that shows she was counseled by her immediate commander on 28 November 2011 because of her drug usage and personal conduct.  The DA Form 4856 includes the following statement from her immediate commander:  "On the night of 
18 November 2011, you failed to be at your appointed place of duty [morning formation] per our verbal discussion and then you failed to report to me and lied about the reasons you were absent.  You claimed that you had pneumonia and later said you had been abducted and taken to Rome, GA.  Upon confirming that you had checked in at the Econolodge in Williamsburg, VA, you again lied to me about your whereabouts saying you were in Rome, GA.  I called the Williamsburg police because you had claimed that you were assaulted and abducted and I wanted them there in order to ensure yours [sic] and my safety.  We entered your room and found many empty bags of spice [synthetic marijuana] and the room itself smelled like marijuana had been smoked in it.  After reading your rights and informing you that you did not have to answer any questions that may incriminate yourself, you confessed to using spice on several occasions and to having been present in the Williamsburg area throughout the time you told me you were in Portsmouth, VA, being treated for pneumonia or abducted in Rome, GA.  You initially claimed to have been forced to smoke spice but then admitted that you had been smoking it since June 2011.  This counseling is also to inform you of my recommendation for separation."

3.  Her record also includes an Incident/Investigation Report provided by the Williamsburg, VA, Police Department confirming that bags of spice were confiscated from the applicant's hotel room on 18 November 2011.

4.  On 9 December 2011, her immediate commander notified her of his intent to initiate separation action against her under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, for commission of a serious offense, with a general, under honorable conditions characterization of service.  The commander cited as the reasons for the proposed separation action the applicant's conduct on 18 November 2011 which includes failing to report to two accountability formations, falsely claiming she had pneumonia and that she had been abducted and assaulted, confessing to using spice on several occasions, having bags of spice in her hotel room, and lying about her whereabouts.  She was also advised of her right to consult with legal counsel, to submit statements in her own behalf, or to waive her rights in writing 

5.  On 8 December 2011, the applicant acknowledged receipt of the proposed separation action and that she was advised of her rights.  She declined the opportunity to consult with legal counsel and to submit a statement in her own behalf.  

6.  Subsequent to the applicant's acknowledgement, her immediate commander formally initiated separation action against her under the provisions of Army Regulation 635-200, paragraph 14-12c.  The intermediate chain of command concurred with the recommendation for separation and recommended the applicant receive a general discharge.  

7.  On 14 December 2011, the appropriate separation authority approved the recommendation for separation under the provisions of Army Regulation 
635-200, paragraph 14-12c, with a general, under honorable conditions characterization of service.  On 19 December 2011, she was discharged accordingly.

8.  Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the narrative reason for separation as "Misconduct, (Serious Offense).

9.  On 28 October 2013, the Army Discharge Review Board, after careful consideration of her military records and all other available evidence, determined she was properly and equitably discharged and denied her request for an upgrade of her character of service and reason for discharge.

10.  According to the National Institute on Drug Abuse, "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.  Sold under many names and labeled "not for human consumption," these products contain dried, shredded plant material and chemical additives that are responsible for their psychoactive (mind-altering) effects.

11.  On 10 February 2011, The Secretary of the Army released a memorandum for the purpose of establishing an Army-wide policy prohibiting the use and possession of synthetic cannabis and other tetrahydrocannabinol (THC) substitutes.  The memorandum provides that all Army personnel are prohibited from, without proper authorization, using, possessing, manufacturing, selling, distributing, importing into or exporting from the United States, or introducing into any installation, vessel, vehicle, or aircraft used by or under the control of the Army any controlled substance analogue or homologue such as "Spice" or similar substances containing synthetic cannabis, any THC substitute, or any synthetic cannabinoid.

12.  The above mentioned policy was further disseminated in All Army Activities (ALARACT) Message Number 296/2011, dated 5 August 2011.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

   a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct consisting solely of minor military disciplinary infractions, a pattern of misconduct consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline, 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.

   b.  Paragraph 3-7a 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.

14.  Army Regulation 635-5-1 (Separation Program Designator (SPD)) Codes) provides the specific authorities, reasons for separating Soldiers from active duty. The regulation provides that the narrative reason for separation of "Misconduct (Serious Offense) is appropriate when a Soldier is separated under the provisions of Army Regulation 635-200, paragraph 14-12c.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for a discharge upgrade and a change of her narrative reason for separation has been carefully considered.

2.  She contends that she was not given the proper time to fight her discharge; however, the evidence shows she was afforded the opportunity to consult with legal counsel and to provide a statement in her own behalf.  She declined the opportunity to do so.  She also contends that no drug tests were ever administered to prove the allegations against her and that she has never shown signs of addiction or abuse.  Although her commander notified her that his recommendation for separation was due, in part, for smoking spice, she was separated for misconduct, serious offense, and not for illegal drug use.  Therefore, it appears that her contentions are without merit.

3.  The available evidence confirms her separation processing for misconduct was accomplished in accordance with the applicable regulations.  All requirements of law and regulation were met and her rights were fully protected throughout the separation process.  

4.  Her record of indiscipline includes failing to be at her place of duty, smoking spice, making false statements, and lying to her commanding officer about her whereabouts, her medical condition, and about being abducted and assaulted.  5.  Based on this record of indiscipline, her service clearly did not meet the standards of acceptable conduct for Army personnel.  Therefore, her overall record of service did not support the issuance of a fully honorable discharge by the separation authority at the time and it does not support an upgrade of her discharge now.

6.  The applicant has failed to provide evidence demonstrating that the command's actions and/or the characterization of her service were in error or unjust.

7.  She was separated under the provisions of Army Regulation 635-220, paragraph 14-12c.  Therefore, the narrative reason for separation shown on her DD Form 214 is correct.  

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

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)                                         AR20140005405



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140005405



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1