IN THE CASE OF:	

		BOARD DATE:	  24 September 2015

		DOCKET NUMBER:  AR20140019765 


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, in effect, the following based on the full relief granted by the Army Discharge Review Board (ADRB):

* reinstatement in the U.S. Army Reserve (USAR), Medical Services Corps (MSC)
* assignment to her previous command, Headquarters and Headquarters Detachment (HHD), 1984th U.S. Army Hospital (USAH), HI
* retroactive promotion to the rank and pay grade of major (MAJ)/0-4 with a date of rank (DOR) of 10 April 2010
* deletion of the flagging action from her records
* reinstatement of her security clearance
* expeditious processing of this case

2.  The applicant states, in effect:

   a.  She was involuntarily discharged from the USAR and denied promotion to MAJ due to a flagging action for alleged misconduct.  Having been granted full relief by the ADRB on 22 September 2014, she wishes to be reinstated and promoted retroactively.  She was separated from the military based on legal and procedural errors that severely prejudiced her right to a full and fair hearing.  This violated her right to due process of the law.  Numerous attempts through various venues were explored which led to the ADRB review process and its 22 September 2014 decision.

   
   b.  Had she not been discharged she would be a MAJ assigned to the 1984th USAH, Fort Shafter Flats, Honolulu, HI.  She would have already completed the Intermediate-Level Education and submitted her request for an early review for the lieutenant colonel (LTC) promotion board.  She was denied all of this as a result of charges due to a false urinalysis which tested positive for marijuana.  The local board was extremely punitive and despite numerous efforts to bring proof to the command she was discharged.  It has taken 4 years for a review of her case before the ADRB and to receive proper recognition of the egregious errors that occurred in her case.  She was granted full relief, but, unfortunately, it takes the Army Board for Correction of Military Records (ABCMR) to reinstate her.

   c.  She is requesting reinstatement with no lost time and reassignment to her previous command.  The HHD and Detachment 2 of the 1984th USAH have switched places.  The Command and Flag was located in AK while Detachment 2 was in HI.  She wishes to return to the HHD, 1984th USAH in HI.  She is still the senior ranking 73A (social work officer) and she should be placed back in her slot.  There is also a 67D (behavioral sciences officer) position, a multifunctional slot that she had previously been slotted into.  She would also like to be promoted to MAJ with a promotion date retroactive to 10 April 2010.  This date of rank will hopefully give her the 3 years’ time in grade she needs to retire in the rank of MAJ with 20 years of honorable service.  

   d.  Had she not been discharged she would have received 4 additional "good years" and would have surpassed her 20 "good years" of military service.  The bottom line is that she wants to retire as a MAJ with 20 years of honorable service.  Her mandatory retirement date (MRD) of 2016 is closely approaching.  She believes her case needs to be expedited and the ABCMR's help is needed.

   e.  The ADRB established that the punishment rendered was unduly harsh given the totality of the facts and circumstances in this case and the separation action.  The resulting hearing contained legal and procedural errors that severely prejudiced her right to a full and fair hearing, violating her right to due process of law.  The undue delay in the processing of this action resulted in her separation after 19 years and 6 months of creditable service towards retirement.   Recalculation of her points and years of service may need to be reviewed.
   
   f.  After reviewing her stellar service record, the inequitable results of the administrative board hearing and the resulting discharge, the ADRB granted full relief in the form of an upgrade of the characterization of service to honorable and changed the narrative reason for separation to Secretarial authority.  The ADRB was fair and just in their decision.
   
   g.  She would like to be reassigned to her former unit and allowed to be promoted to MAJ which she was denied based on the flagging action connected to her case.  She would like to be allowed to complete the remaining months she needs as an Army career officer.

3.  The applicant provides copies of the following:

* DA Form 61 (Application for Appointment)
* DA Form 5074-1-R (Record of Award of Entry Grade Credit (Health Services Officers))
* memorandum, subject:  Appointment as a Reserve Commissioned officer of the Army Under Title 10, U.S. Code (USC) 12202 and 12203
* DA Form 71 (Oath of Office – Military Personnel)
* two DA Forms 1059 (Service School Academic Evaluation Report)
* memorandum, subject: Promotion as a Reserve Commissioned Officer of the Army
* three transfer orders
* nine DA Forms 67-9 (Officer Evaluation Report (OER))
* fifteen training certificates
* eight award certificates
* memorandum, subject:  Notification of Urinalysis Positive Result
* memorandum for Record (MFR)
* Drug Testing Custody and Control Form, from Diagnostic Laboratory Services
* letter, subject:  Army Substance Abuse Program (ASAP) Clinical Evaluation Summary and Recommendations
* DA Form 1574 (Report of Proceedings By Investigative Officer/Board of Officers)
* Summarized Administrative Separation Proceedings
* document, subject:  Additional Remarks to Support Retention 
* memorandum, subject:  Results of Separation Board Action
* memorandum, subject:  Formal Recommendation Concerning Elimination 
* Orders Number D-11-0189981
* Chronological Statement of Retirement Points
* ADRB – Case Report and Directive (Record Review)
* two emails and promotion worksheet pertaining to her promotion to MAJ
* request for an ADRB hearing review
* ADRB – Case Report and Directive (Hearing Review)
* Orders Number D-11-018981R
* Orders Number D-11-423598
* Honorable Discharge Certificate
* three photographs:  one of which she indicates is of herself, a second is of an opened file cabinet, and a third that appears to have been taken near the door entrance of the medical section, 1984th USAH

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show she was appointed in the USAR, Medical Service Corps (MSC), as a first lieutenant (1LT), on 14 December 2000, with 2 years and 6 months of entry grade credit, and with prior enlisted service.  At the time of appointment, she was 44 years of age.  She held the Area of Concentration of 73A.

2.  Her records contain and she provided copies of the following:

   a.  A DA Form 1059 showing she completed the Army Medical Department (AMEDD) Officer Basic Course on 26 July 2002.

   b.  A memorandum, dated 10 June 2004, promoting her as a Reserve Commissioned Officer of the Army to the rank of captain (CPT) with an effective date of 28 April 2004. 

   c.  A DA Form 1059 showing she completed the AMEDD CPT’s Career course on 30 June 2007.

   d.  Three transfer orders reassigning her between various major sub-commands in the USAR.

   e.  Nine DA Forms 67-9, for the periods 2001 through 2010, showing she received ratings of "Outstanding Performance, Must Promote" and "Best Qualified."

   f.  Fifteen training certificates, dated between 2002 and 2009.

   g.  Nine award certificates, dated between 1977 and 2007 to include the Army Commendation Medal and Army Good Conduct Medal.

   h.  A memorandum, subject: Notification of Urinalysis Positive Result, dated 14 August 2008, wherein the applicant's command was advised that a make-up urinalysis test was conducted on 3 August 2008 and the applicant had a positive result for marijuana.  This was her first urinalysis drug positive.  Per Army Regulation 600-85 (ASAP), paragraph 12-10, the command was required to initiate separation action and a suspension of favorable personnel actions (Flag) on the applicant.
3.  Her records located on the integrated Personnel Electronic Records Management System (iPERMS) do not contain a copy of the DA Form 268 (Flag) for testing positive for marijuana on 3 August 2008.

4.  Her records contain and she also provided:

   a.  An MFR, dated 1 October 2008, wherein the Commander, Detachment 2, 1984th USAH, stated:

		(1)  The applicant had been the executive officer for the unit since April 2008.  In the absence of two key full-time staff members she had organized and instilled the need to operate the "Army Way" to the Active Guard Reserve staff.  She had organized and reconstructed the unit to hold each and every individual accountable for their actions.

		(2)  The applicant had been able to reassign, especially the MSC officers, to develop in their area and enhance cohesion within the unit.  Her sense of duty and loyalty was unquestionable and she was a very dedicated individual.  

		(3)  One of their Soldiers who returned from Iraq had not been paid for 8 months.  He did not complain about it, but when the applicant heard about it she immediately contacted the appropriate personnel and corrected the situation.

		(4)  The applicant was informed of the positive urine test on 15 August 2008 and she immediately went to an independent laboratory and submitted a urine sample for testing.  The test results were negative (copy attached).

		(5)  The applicant found herself in a very difficult and unfortunate situation in which she categorically denied any use of an illegal substance.  How and why she tested positive for marijuana could not be explained.  The commander had nothing but praise for the applicant’s work and what she had done with the unit since he had been in command.  Therefore, he could not connect the two obvious diverse behaviors.  He recommended his full support for retaining the applicant in the USAR.

   b.  A Drug Testing Custody and Control Form, Diagnostic Laboratory Services, dated 15 August 2008, showing the applicant's negative urine test for marijuana.

   c.  A memorandum, dated 25 November 2008, subject:  ASAP Clinical Evaluation Summary and Recommendations, wherein a Tripler Army Medical Center, Certified Substance Abuse Counselor stated:
   
		(1)  The applicant received a full screen evaluation for a possible alcohol/substance abuse problem on 7 October 2008.  As a result of that assessment, she was found to have no diagnosis and was not enrolled in ASAP for treatment.

		(2)  Her rehabilitation team meeting was held on 25 November 2008 and her results were shared with her and her commander.  The recommendations were for no enrollment, no treatment, and a strong recommendation for retention in the military.  The recommendation for retention was based on the evaluation and observations made during the evaluation.

		(3)  The applicant was very cooperative, sincere, and open during her evaluation.  Her responses to inquiries were consistent and clearly stated.  There was no indication of any attempt to give false information.

		(4)  Given her history of no alcohol or drug related incidents, it was recommended that she be given the benefit of the doubt.  It was highly recommended that she be retained.

   d.  A DA Form 1574 showing a board convened on 2 May 2009 and after considering the evidence found the allegation of personal misconduct, specifically, the use of marijuana by the applicant, was supported by the preponderance of the evidence.  The board recommended the applicant be separated from the service with an under other than honorable conditions (UOTHC) discharge.

   e.  Summarized Administrative Separation Proceedings showing a board of officers convened on 2 May 2009 to determine whether the applicant should be administratively separated from the Army and how her discharge should be characterized.  The proceedings show the applicant was present and represented by counsel.

   f.  A document, subject:  Additional Remarks to Support Retention dated 21 May 2009, wherein the Tripler Army Medical Center, Certified Substance Abuse Counselor stated:
   
		(1)  He was requested to be an expert witness for the applicant for her Board of Inquiry (BOI) hearing that occurred about 3 weeks before.  He was asked a number of questions during his phone contact with the members present for her court session.

		(2)  He wanted to provide information he thought was very relevant in deciding the future of the applicant.  First, only one result had influenced the BOI members to render a negative result for the applicant.

		(3)  Second, the information he had received in regard to her urine sample was that it was apparently left unsecured over a weekend before the laboratory testing was done.  That action left the urine in a place where it could be tampered with.  That may be a violation of chain of custody for urine specimens for evaluation purposes.

		(4)  He asked a BOI member if it was important for an officer to set the standards in the Army.  His response was "yes," but that also included warrant officers and noncommissioned officers.  In retrospect he realized that he should have said more.  He could have stated that apparently the applicant did set that standard for 17 years.

		(5)  That alleged one-time use of marijuana wiped out 17 years of her setting an acceptable standard.  Even though testing is not 100 percent accurate and even though she strongly insisted that she never used an illegal drug, she received no benefit of the doubt.  Her motivation for using that drug was lacking.

		(6)  She was also a social worker working with children in her civilian life.  The consequences for her using an illegal drug in her military or civilian life were severe.  He had to consider, as a clinical psychologist, why a woman at her age who desired to be promoted would take a chance on using any illegal substance.

		(7)  He had some concerns about Army leaders who thought they were making professional choices, but actually their choices about giving second chances were clouded by their own personal past related to alcoholism or drug addiction.  He had seen such rigidity in the decision making, which seemed to lack human compassion, that he had often began to wonder if some of the leaders had some unresolved anger and/or pain related to their being victimized by an alcoholic or a drug addicted person from their own family or if they had known someone who was victimized.

   g.  A memorandum, subject:  Results of Separation Board Action, dated 14 July 2009, wherein the Commanding General (CG), Headquarters, 
9th Mission Support Command, advised the U.S. Army Human Resources Command (HRC) of the following:

		(1)  On 2 May 2009, a BOI found the use of marijuana by the applicant was supported by the preponderance of evidence and that such use was conduct unbecoming an officer.  The board recommended the applicant be separated from the service with an UOTHC discharge.

		(2)  He had reviewed the enclosed record of proceedings, to include the matters submitted by the applicant after the board had adjourned, and considered the advice of his Staff Judge Advocate.  He recommended that the applicant be separated from the USAR with an UOTHC discharge, but with the separation suspended for a period of 12 months, with the suspension contingent upon the applicant submitting to involuntary urinalysis examinations and alcohol breathalyzer tests every month and meeting the appropriate standards of conduct and duty performance.

		(3)  He believed the applicant was worthy of retention as she had numerous laudatory OERs, was a social worker in her civilian occupation, knew the risks associated with drug abuse and addition, and that behavior was completely opposite of her military profession and career goals.

   h.  A memorandum, subject:  Formal Recommendation Concerning Elimination, dated 30 November 2009, wherein, a major general (MG), the Commander, Headquarters, 8th Theater Sustainment Command approved the applicant's elimination with an UOTHC discharge.

   i.  Orders Number D-11-0189981, issued by HRC on 3 November 2010, discharging her from the USAR in the rank of CPT on 1 December 2010, with an UOTHC discharge.

5.  A review of her official military personnel file located on iPERMS failed to reveal when a security investigation was completed and the date she was granted a security clearance.

6.  Her records further contain and she further provided:

   a.  A Chronological Statement of Retirement Points, dated 5 February 2013, showing she was credited with 18 years, 6 months, and 11 days of qualifying years of service as of 1 December 2010.  The statement shows she did not earn any creditable points for the years 1980 to 1981 and 1983 to 2000 (break in service).

   b.  An ADRB – Case Report and Directive (Record Review), dated 7 February 2013, showing the ADRB considered her request for an upgrade of her discharge in a records review.  The ADRB analyst recommended her characterization of service be upgraded to honorable.  However, in a 3-to-2 vote the ADRB denied her request for an upgrade of her discharge.  The ADRB also determined that the narrative reason for discharge was both proper and equitable.  She was advised to apply to the ABCMR regarding her other issues.

   c.  Two emails dated between 3 and 12 March 2014, wherein HRC advised the applicant that the Fiscal Year 2010 (FY10) MAJ AMEDD Board recommended her for promotion.  The board convened on 5 January 2010 and the results were approved on 19 April and released on 4 May 2010.  She was “discharged prior to pinning her promotion therefore no order was published promoting her to major.”

   d.  An ADRB – Case Report and Directive (Hearing Review), dated 22 September 2014, showing, after examining her record of service, hearing her testimony, and notwithstanding the analyst's Discussion and Recommendation, the ADRB determined her discharge was inequitable and voted to grant full relief in the form of an upgrade to honorable and changed the narrative reason for separation to Secretarial authority.  The ADRB determined the record confirmed her discharge was appropriate because of the quality of her service was not consistent with the Army's standards for acceptance personal conduct and performance of duty by USAR officers.  It brought discredit on the USAR and was prejudicial to good order and discipline.

   e  Orders Number D-11-018981R, issued by HRC on 5 November 2014, voiding Orders Number D-11-018981, dated 3 November 2010.

   f.  Orders Number D-11-423598, issued by HRC on 10 November 2014, honorably discharging her from the USAR on 1 December 2010.  She further provided a copy of the resulting Honorable Discharge Certificate.

7.  Army Regulation 135-155 (Army National Guard (ARNG) and USAR – Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes the procedures used for selecting and promoting ARNG and USAR commissioned officer.  Paragraph 2-6 of the regulation states an officer removed from an active status before promotion is final (the effective date of promotion) will be removed from the promotion list.  The removal will not be considered a non-selection.  If returned to an active status, the officer’s name will not be placed on a promotion list or nominated for promotion unless again recommended by a selection board.  An officer returned to an active status after having been in an inactive or retired status will not be considered for a Reserve of the Army promotion (mandatory or USAR position vacancy) until at least       1 year after the date of return to an active status.


8.  Army Regulation 140-10 (Army Reserve – Assignments, Attachments, Details, and Transfers) prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer USAR Soldiers, with some exceptions.  The regulation states in:

   a.  Paragraph 7-2f(1) – 1LT, CPT, MAJ, and LTC shall be removed on the earliest of the following dates:  at 28 years of commissioned service if under age 25 at the time of the initial appointment or on their 53rd birthday if age 25 or older at the initial appointment.  

   b.  Paragraph 7-11(7)b (General Exception – The removal of a Soldier from active status becomes void if the removal was contrary to law.  When the erroneous removal is discovered, the Soldier will be allowed to resume active participation in the Reserve.  Removal orders will be revoked to clarify the record and the Soldier’s active status will be confirmed.

9.  Army Regulation 600-8-2 (Personnel - General - Suspension of Favorable Personnel Actions (Flags)) supports the flagged records work center of the personnel service center and personnel service company and presents the flagging action program in a logical sequence.  The regulation states in:

   a.  Paragraph 1-10d – a flag will be removed immediately when a Soldier's status changes from unfavorable to favorable.  

   b.  Paragraph 1-12 – a flag will be initiated when a Soldier is under charges, restraint, or investigation.  The flag will be removed when the Soldier is released without charges, charges are dropped, or punishment is completed.

   c.  Paragraph 2-2(g)(3) – a Soldier will be flagged when the Commander, U.S. Army Central Personnel Security Clearance Facility denies or revokes the Soldier’s security clearance, in accordance with Army Regulation 380–67 (Security – Personnel Security Program), which is required for his or her continued service or by his or her military operational specialty.

10.  Army Regulation 600-8-104 (Army Military Human Resource Record (AMHRR) Management) prescribes the policies governing the AMHRR Management Program and it composition.  The regulation states once a document is placed in the official military personnel file it become a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the proper authorities listed in the regulation.  There is no authority for the placement of a DA Form 268 in a Soldier's Interactive Personnel Electronic Records Management System record.  

11.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  It is ABCMR policy to consider cases based on the date the application is received.  Current policy only provides for expediting cases in extraordinary circumstances, such as imminent death.  There are no provisions for expediting cases to support reinstatement to an active status for allowing an applicant to complete 20 years of service prior to reaching their MRD.

DISCUSSION AND CONCLUSIONS:

1.  With regard to the applicant's reinstatement in the USAR, MSC, and assignment to her previous command, HHD, 1984th USAH, HI, based on the full relief granted by the ADRB:

   a.  The evidence shows she had served 5 years, 3 months, and 23 days during the term of service under review.  She was promoted to CPT and received ratings of "Outstanding Performance, Must Promote" and "Best Qualified" between 2001 and 2010.  

   b.  On 15 August 2008, she was notified that she had tested positive for marijuana and a flagging action was initiated against her.  On the same date, she submitted a urine specimen to an independent laboratory which subsequently tested negative.  On 2 May 2009, she appeared with counsel before an administrative board.  The board recommended elimination with an UOTHC discharge.  

   c.  The CG, 9th Mission Support Command, reviewed the BOI proceedings and other matters submitted by the applicant and recommended her separation with an UOTHC discharge.  He also recommended suspension of her separation action for 12 months contingent upon her submitting to involuntary urinalysis examinations and alcohol breathalyzer tests every month and meeting the appropriate standards of conduct and duty performance. 
   
   d.  The Commander, Headquarters, 8th Theater Sustainment Command approved the applicant’s separation with an UOTHC discharge.  
   
   e.  HRC issued orders discharging her from the USAR, effective 1 December 2010, with an UOTHC discharge.  At the time, she had completed 18 years,
6 months, and 11 days of qualifying service.
   
   f.  On 22 September 2014, the ADRB granted her full relief, in response to her request, by upgrading her UOTHC discharge to honorable and changing her narrative reason for separation to Secretarial authority.  The ADRB determined that based on her service record the characterization of her service was too harsh.  

   g.  Notwithstanding the relief granted by the ADRB, the applicant's isolated incident of misconduct adversely affected the quality of her service, brought discredit on the Army, and was prejudicial to good order and discipline.  There is no evidence and she provided insufficient evidence showing her BOI was not conducted in according with regulatory guidance and she did not receive due process.  

   h.  The evidence shows her administrative discharge was accomplished in compliance with applicable law and regulation in effect with no indication of procedural errors which would have jeopardized her rights.  Absent a reason to reinstate her, there is no basis for assigning her to a position. Therefore, the requested relief is not warranted.
   
2.  With regard to her retroactive promotion to MAJ with a DOR of 10 April 2010:

   a.  The evidence shows she was discharged from the USAR in the rank of CPT on 1 December 2010.  She was recommended for promotion by the FY10 MAJ AMEDD Board and the results were released to the public on 4 May 2010.  No orders were published promoting her because she would have been under suspension of favorable personnel actions, as a result of the positive urinalysis.

   b.  By regulation, an officer removed from an active status before promotion is final will be removed from the promotion list.  If returned to an active status, the officer’s name will not be placed on a promotion list or nominated for promotion unless again recommended by a selection board.  That officer will not be considered for a Reserve of the Army promotion (mandatory or USAR position vacancy) until at least 1 year after the date of return to an active status.

   c.  If she were to return to an active status she would not be eligible for the FY10 MAJ AMEDD recommended promotion as, her name has been removed from that promotion list.  Her name would also not be placed on a promotion list unless again recommended by a selection board.  That consideration would not be until at least 1 year after the date of return to an active status.  Therefore, the requested relief is not warranted.

3.  With regard to deletion of flagging action from her records:

   a.  A flagging action was imposed against the applicant for a positive urinalysis for marijuana.  There is no evidence of record and she did not provide sufficient evidence showing this was a flawed or unjust urinalysis.  She was subsequently discharged after consideration by a BOI.  

   b.  By regulation, there is no authority for the placement of a DA Form 268 in a Soldier's iPERMS record.  A review of her records on iPERMS did not reveal the form was filed there.

4.  With regard to reinstatement of her security clearance:

   a.  There is no evidence and it cannot be determined when her security clearance was actually granted and/or revoked.  She also did not inform the Board of this information.  

   b.  Her security clearance reinstatement contention would be addressed by a security manager if she were reinstated to an active USAR status.  The ABCMR cannot arbitrarily reinstate her security clearance without a favorable security screening and specific effective date.  Therefore, the requested relief is not warranted.

5.  With regard to recalculation of her points and years of service she should contact HRC and request their assistance.

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)                                         AR20140019765



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ABCMR Record of Proceedings (cont)                                         AR20140019765



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