IN THE CASE OF:  Ms. 
      
      BOARD DATE:  	24 April 2013

      CASE NUMBER:  	AR20120022894
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant's record of service during the period of enlistment under review, and considering the Discussion and Recommendation which follows, the Board determined the discharge was both proper and equitable and voted to deny relief.




      
      Presiding Officer
      
I certify that herein is recorded the true and complete record of the proceedings of the Department of the Army Discharge Review Board in this case.

THE APPLICANT’S REQUEST AND STATEMENT:

1.  The applicant requests an upgraded from a general, under honorable conditions characterization of service to an honorable discharge and change to her reentry code from an RE-3 to a RE-1. 

2.  The applicant states, in effect, that she was discharged from the Army for patterns of misconduct under the UCMJ because she tested positive for marijuana.  She was going through a rough time due to multiple deaths in her family. 

3.  She confessed to her commander what she had done and was told she would be discharged, but to keep acting like a Soldier and she did so.  Later, her chain said they wanted to keep her in the ARNG.  She passed all of the drug tests given to her after the initial positive one.  Her command wrote a letter to the Adjutant General of Florida requesting to keep her. By the time the letter had been processed, the discharge had already been processed.  She is not making excuses for what she did; rather she has accepted it, lived with it, and learned from it. 

4.  She has enrolled in school, and was working at the VA.  Recently she has been looking for a possible way back in the military. She was also fired from the VA due to the one mistake she made while in the military. 

5.  She was told by her sergeant and commander that if she ever wanted to get back in they would help her.  She was told that the Army is not currently granting waivers right now. Although she has tried and searched for two years for a way to get back in, she won’t ever give up the fight to reenlist and better herself. 

6.  She is currently studying to be a physician’s assistant and currently holds a 3.45 GPA in college. Unfortunately she is unable to work at the VA to help people who have served this country. Currently she is a cadet in ROTC and hoping for another chance at life. She hopes to excel in her education and career. 
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date: 		3 December 2012			
b. Discharge Received:  		General, Under Honorable Conditions		
c. Date of Discharge:  			4 May 2010				
d. Reason/Authority/SPD/RE Code:  Acts or Patterns of Misconduct Under the UCMJ,  
State Military Code or Similar Laws, NGR 600-200,  6-35i(1), NA, RE-3
e. Unit of assignment:  		Battery D, 3rd Battalion, 265th AD (ADVENGER),
					Bradenton, FL
f. Current Enlistment Date/Term: 	3 October 2008, 6 years	
g. Current Enlistment Service: 	1 year, 7 months, 2 days	
h. Total Service: 			1 year, 7 months, 2 days
i. Time Lost: 				 None	
j. Previous Discharges:  		IADT 081119 – 090601/HD concurrent enlistment	
k. Highest Grade Achieved:  		E-3	
l. Military Occupational Specialty:  	92A10, Automated Logistical Specialist	
m. GT Score: 				NIF	
n. Education:  				HS Graduate	
o. Overseas Service:  			None		
p. Combat Service:  			None	
q. Decorations/Awards:  		NDSM, ASR	
r. Administrative Separation Board: No	 	
s. Performance Ratings:  		None	
t. Counseling Statements: 		None
u. Prior Board Review:  		No
SUMMARY OF SERVICE:		
	
The applicant enlisted in the Army National Guard on 3 October 2008, for a period of 6 years.  She was 22 years old at the time of entry and a high school graduate.  She received a NDSM and an ASR and completed 1 year, 7 months, and 2 days of service in the ARNG.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on                          11 September 2009, the unit commander notified the applicant of initiation of separation action under the provisions of State Military Code or Similar Laws, NGR 600-200, chapter 12, by reason misconduct for a positive urinalysis for THC 139 on (090802).  At some point during the, discharge process, the discharge authority was changed from NGR 600-200, chapter 12 to reflect NGR 600-200, chapter 6-35i(1) and the analyst presumed government regularity in the process. 

2.  Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge.

3.  On 11 September 2009, the applicant consulted with legal counsel, was advised of the impact of the discharge action and did not submit 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.  

4.  On 29 April 2010, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.

5.  On 6 May 2010, The Department of the Army and the Air Force, Florida National Guard, Office of the Adjutant General issued orders 126-045 which amended the discharge authority to read NGR 600-200, 8-35i(1) which reflects the current regulation and the current paragraph that was previously numbered 6-35i(1).

6.  The applicant was discharged from the Army on 4 May 2010, with a characterization of service of general, under honorable conditions under the provisions State Military Code or Similar Laws, NGR 600-200, 6-35i(1), a Separation Program Designator Code (SPD) of NA, and an RE code of 3. 

7.  The applicant’s service record does not contain any evidence of unauthorized absences or time lost.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

The applicant’s record contains a general counseling form dated, 11 September 2009 concerning the applicant’s positive urinalysis test.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided an on-line application with attachments which include a memorandum from the Department of the Army and The Air Force, Florida National Guard, Office of the Adjutant General, dated 7 September 2012; an email memorandum, dated 18 June 2012; a memorandum, dated 9 December 2011, and a NGB Form 22.


POST-SERVICE ACTIVITY: 

The applicant states in effect that she is studying to be a physician’s assistant and currently holds a 3.45 GPA in college.

REGULATORY AUTHORITY:

1.  Army Regulation 135-178 sets forth the basic authority for the Army National Guard and Army Reserve and establishes the separation of enlisted personnel.  Chapter 12 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. 
      
2.  Army National Guard Regulation 600-200 sets forth the basic authority for the Army National Guard and establishes the separation of enlisted personnel.  Chapter 8 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.
     
3.  Army Regulation 635-200, 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.  Whenever there is doubt, it is to be resolved in favor of the individual.

4.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of the characterization of her discharge and changing her RE-code was carefully considered.  However, after examining the applicant’s record of service, her military records, the documents and the issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge or change the RE-code.  

2.  The record confirms 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.  It brought discredit on the Army, and was prejudicial to good order and discipline.  The applicant, by violating the Army's policy not to possess or use illegal drugs (marijuana), compromised the trust and confidence placed in a Soldier.  The applicant, as a Soldier, 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 diminished the quality of her service below that meriting an honorable discharge.

3.  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.  

4.  The applicant contends that she was having family issues that affected her behavior and ultimately caused her to be discharged.  However, she had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that she ever sought such assistance before committing the misconduct which led to the separation action under review.  

5.  The applicant also contends that an upgrade of her discharge will allow her to obtain better employment.  However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.

6.  Additionally, the applicant contends that an upgrade of her discharge would allow educational benefits through the use of the GI Bill.  However, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.

7.  The applicant has requested a change to the reentry code in order to rejoin the Service.  However, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge.  Based on AR 635-5-1 and the SPD Code/RE Code Cross Reference Table the applicant was appropriately assigned an RE code of 3.  There are no basis upon which to grant a change to the reason or to the RE code.  An RE Code of 3 indicates the applicant requires a waiver prior to being allowed to reenlist.  If reenlistment is desired, the applicant should contact a local recruiter to determine eligibility to reenlist.  Recruiters can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of reentry eligibility (RE) codes if appropriate. 

8.  The records show the proper discharge and separation authority procedures were followed in this case.  

9.  Therefore, the reason for discharge and the characterization of service being both proper and equitable, recommend the Board deny relief. 





















SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Record Review	  Date:  24 April 2013     Location: Washington, DC

Did the Applicant Testify?  No 

Counsel: None

Witnesses/Observers: NA 


Board Vote:
Character Change:  0	No Change:  5
Reason Change:	0	No Change:  5
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:		No
Change Characterization to:	No Change
Change Reason to:			No Change
Change Authority for Separation:	N/A
Change RE Code to:		N/A
Grade Restoration to:		N/A
Other:					N/A


















Legend:
AMHRR - Army Military Human Resource Record	FG - Field Grade	IADT – Initial Active Duty Training	 	RE - Reentry
AWOL - Absent Without Leave	GD - General Discharge	NA - Not applicable	SCM- Summary Court Martial
BCD - Bad Conduct Discharge	HS - High School	NIF - Not in File	SPCM - Special Court Martial
CG - Company Grade Article 15	HD - Honorable Discharge	OAD - Ordered to Active Duty	UNC - Uncharacterized Discharge  
CID - Criminal investigation Department	MP – Military Police	OMPF - Official Military Personnel File	UOTHC - Under Other Than                           			               Honorable Conditions


ADRB Case Report and Directive (cont)		AR20120022894



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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