Applicant Name:  ?????

Application Receipt Date: 2011/06/02	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that she was separated for a serious offense she did not commit—she innocently ingested an Adderall as evidenced by LTC J’s request that she receive a GOMOR for her innocent ingestion of the Adderall and that LTC J described her action as negligence.  She argues that negligence is not the basis for separation for commission of a serious offense.  Further, that LTC J had commented that “‘UCMJ action was not pursued due to the lack of sufficient evidence to support a charge for wrongful use of a controlled substance under Article 1 12a of the UCMJ,’” and that AR 635-200, paragraph 14-12(c) states that, “[c]ommission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the MCM.”  In her case, it is stated that, owing to her innocent ingestion, there was insufficient evidence actionable under the UCMJ, and that since the trial counsel could not establish evidence necessary to establish an offense under the UCMJ, there was also insufficient evidence that she committed a serious offense under AR 635-200, Chapter 14-12c.  She states that negligent actions are not the basis for separation under that chapter, particularly in light of the “‘specific circumstances’” of the incident, and since there was no “‘offense,’” there was no “‘commission of a serious offense.’”  She concludes that until the incident, she served honorably and continually since September 1996, for a period of nearly 14 years; she deployed to Iraq twice and was awarded the Iraq Campaign medal with two campaign stars; she also deployed to Bosnia; and her awards and commendations are numerous as noted in her DD 214.  Given her lengthy, honorable, and dedicated service, it is plainly unjust that the character of her discharge is General and not an Honorable discharge. She was denied a number of benefits to which she would otherwise have been entitled to owing to the characterization of the General discharge.  Due to the circumstances of her separation, she requests her discharge be upgraded from the effective date of her separation. 

II.  Were Proper Discharge and Separation Authority procedures followed?	     
Tender Offer:   NA

See Attachments:  Legal     Medical     Minority Opinion     Exhibits 

III.  Discharge Under Review
Unit CDR Recommended Discharge: 	   Date: 100201
Discharge Received: 			   Date: 100625   Chapter: 14-12c       AR: 635-200
Reason: Misconduct (Serious Offense)	   RE:     SPD: JKQ   Unit/Location: C Co, Warrior Transition Bn, 101st Airborne Division (Air Assault), Fort Campbell, KY 

Time Lost: None

Article 15s (Charges/Dates/Punishment): None

Courts-Martial (Charges/Dates/Punishment): None

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  29
Current ENL Date: 060118    Current ENL Term: 5 Years  ?????
Current ENL Service: 	04 Yrs, 05 Mos, 08 Days ?????
Total Service:  		14 Yrs, 01 Mos, 18 Days (Note: enlistment of 060118 has total active service: 09/04/00; DD 214 has a total of 13/08/08; total should be 13/09/08) (includes inactive status)
Previous Discharges: 	RA 040319-060117 / HD
			RA 000911-040318 / HD
			RA 000612-000910 / HD
			USAR 960508-960917 / NA
Highest Grade: E-6		Performance Ratings Available: Yes    No 
MOS: 44C / Finance NCO   GT: 118   EDU: 14 Years   Overseas: Kosovo; Germany; SWA    Combat: Iraq (050921-060719)
Decorations/Awards: ICM/2CS; ARCOM-2; JSAM; AGCM-4; NDSM; AFEM; GWOTSM; NPDR-2; ASR; OSR-2; NATOM

V.  Post-Discharge Activity
City, State:  
Post Service Accomplishments: None

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 1 February 2010, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason of misconduct—for positive urinalysis for Amphetamine on 1 April 2009 and for positive urinalysis for Marijuana on 17 February 1998, with a general, under honorable conditions discharge.  She was advised of her rights. 
        
       On 4 February 2010, the applicant consulted with legal counsel and requested consideration of her case by an administrative separation board.  The applicant waived submitting a statement on her own behalf.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  The intermediate commander reviewed the proposed action and recommended approval with a general, under honorable conditions discharge.  
       
       On 26 April 2010, the applicant was notified to appear before an administrative separation board and advised of her rights.  On 11 May 2010, the administrative separation board convened.  The applicant appeared with counsel.  The board recommended the applicant be discharged with issuance of a character of service of general, under honorable conditions.  The board further recommended to suspend the discharge.
         
       On 8 June 2010, the separation authority approved the recommendation of the administrative separation board to discharge the applicant, but disapproved the recommendation to suspend the discharge and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.

       b.  Legal Basis for Separation:  
       Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of this regulation establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  Army policy states that an under other than honorable conditions discharge is normally considered appropriate; however, a general, under honorable conditions or an honorable discharge may be granted.  

       c.  Response to Issues, Recommendation and Rationale:  
       After a careful review of all the applicant’s military records, and the issue and documents submitted with the application, the analyst found no mitigating factors which would merit an upgrade of the applicant's discharge.  
       
       The analyst determined that the applicant’s discharge was appropriate because the quality of her service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel.  The applicant by violating the Army's policy not to possess or use illegal drugs, compromised the special trust and confidence placed in a non-commissioned officer (NCO).  The applicant, as a NCO, had the duty to support and abide by the Army's drug policies.  By abusing illegal drugs, the applicant knowingly risked a military career and the misconduct diminished the quality of her service below that meriting a fully honorable discharge. 
       
       The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant’s service mitigated the misconduct or poor duty performance.  
       
       The applicant contends that she did not do what she was discharged for; however, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review, unless there is substantial credible evidence to rebut the presumption.  The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support her issue.  There is no evidence in the record, nor has the applicant produced any evidence, to support the contention that she was unjustly discharged.   In fact, the applicant’s case and issues were considered by a separation board at her hearing, and her chain of command also considered her previous record of having abused an illegal drug (Marijuana).  The applicant’s statements, alone, do not overcome the government’s presumption of regularity and she has not provided any documentation or further evidence in support of her request for an upgrade of her discharge.  
       
       The analyst acknowledges the applicant's in service accomplishments as stated in her application and official military records.  However, the analyst did not find the said issue sufficiently mitigating to warrant an upgrade of the discharge under review.  
       
       Furthermore, the analyst found no evidence of arbitrary or capricious actions by the command.  The analyst was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 
       
       Therefore, the analyst determined the reason for discharge and the characterization of service were both proper and equitable and recommends to the Board to deny relief. 

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 20 December 2010         Location: Washington, D.C.

Did the Applicant Testify?  Yes     No  

Counsel: [ Redacted ]

Witnesses/Observers: NA 

Exhibits Submitted: DD 293, dated 27 May 2011; undated memorandum, subject: Recommendation for Issuance of GOMOR, signed by LTC J(C); an extracted hearing testimony of LTC J(C); 2 NCOERS (080401-090331) (090501-100430); DD 214, dated 25 June 2010.


















VIII.  Board Discussion, Determination, and Recommendation
After carefully examining the applicant’s record of service during the period of enlistment under review and considering the analyst’s recommendation and rationale, the Board determined that the discharge was both proper and equitable and voted to deny relief. 
        
IX.  Board Decision						
Board Vote:
Character - Change 0    No change 5
Reason -     Change 0    No change 5
(Board member names available upon request)

X.  Board Action Directed
Issue a new DD Form 214  
Change Characterization to: 
Change Reason to: NA
Other: NA
RE Code: 
Grade Restoration:   No   Yes   Grade: NA

XI.  Certification Signature
Approval Authority:




EDGAR J. YANGER
Colonel, U.S. Army
President, Army Discharge Review Board




BONITA E. TROTMAN
Lieutenant Colonel, U. S. Army
Secretary Recorder












Legend:
AWOL    	Absent Without Leave		GCM   General Court Martial	NA   Not applicable			SCM	Summary Court Martial
BCD   	Bad Conduct Discharge	GD      General Discharge	NIF   Not in the file			SPCM	Special Court Martial
CG 	Company Grade Article 15	HD      Honorable Discharge	OAD   Ordered to Active Duty		UNC	Uncharacterized Discharge  
DD 	Dishonorable Discharge	HS       High School Graduate	OMPF   Official Military Personnel File	UOTH  	Under Other Than Honorable 
FG	Field Grade Article 15		IADT   Initial Active Duty Training	RE     Reentry Code				Conditions 

ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20110011892
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