IN THE CASE OF:  	

      BOARD DATE:  	3 July 2013

      CASE NUMBER:  	AR20130003335
___________________________________________________________________________

Board Determination and Directed Action

1.  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 improper.  

2.  The Board noted the applicant was discharged based on court-martial charges for a urinalysis which was protected evidence.  The results of command-directed drug testing are inadmissible under the military rules of evidence.  AR 600-85 stipulates that competence for duty test results may be used as a basis for administrative action to include separation, but shall not be used as a basis for an action under the Uniform Code of Military Justice or used to characterize a Soldier’s service.  The CO urinalysis rendered the court-martial charges, based on the limited used evidence, invalid.

3.  Accordingly, the Board voted to grant full relief in the form of an upgrade of the characterization of service to honorable and a change to the narrative reason for separation to Secretarial Authority.  

4.  This action entails restoration of grade to E-4.



      
      
      
      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 her under other than honorable conditions discharge be upgraded to honorable.

2.  The applicant states, in effect, that her discharge was inequitable because it was based on one isolated incident.  She never had any serious problem while in the Army.  She is now a single mother of two girls; she has earned an associate’s degree and is currently working on her bachelor’s degree.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			15 February 2013
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				15 May 2003
d. Reason/Authority/SPD/RE Code:	  	In Lieu of Trial by Court-Martial, AR 635-200 								Chapter 10, KFS, RE-4
e. Unit of assignment:				546th Maintenance Company, Fort Polk, LA
f. Enlistment Date/Term:			9 May 2001, 5 years 
g. Current Enlistment Service:		2 years, 7 days
h. Total Service:				2 years, 7 days
i. Time Lost:					None 
j. Previous Discharges:			None
k. Highest Grade Achieved:			E-4
l. Military Occupational Specialty:		92A10, Automated Logistics Specialist
m. GT Score:					102
n. Education:					1 year of college
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 record shows the applicant enlisted in the Regular Army on 9 May 2001, for a period of 5 years; she was 21 years old at the time and had completed 1 year of college.  Her record indicates she served a total of 2 years and 7 days of active service.  The record documents no acts of valor or significant achievement.    


SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record contains a DD Form 458, Charge Sheet, which indicates that on 
25 March 2003, the applicant was charged with two specifications of illegal drug use for wrongful use of cocaine (030206-030227), and wrongful use of methamphetamines (030206-030227)
      
2.  On 7 April 2003, the applicant consulted with legal counsel and voluntarily requested, in writing, discharge under the provisions of Chapter 10, AR 635-200 in lieu of trial by court-martial.  In this request, the applicant admitted guilt to the offense, or a lesser included offense.  The applicant indicated she understood she could receive an under other than honorable conditions discharge and that the discharge would have a significant effect on her eligibility for veteran’s benefits.  The applicant did not submit a statement on her behalf.  The unit commander recommended approval of the discharge with a characterization of service of under other than honorable conditions.  

3.  On 16 April 2003, the separation authority approved the Chapter 10 request and directed the discharge with a characterization of service of under other than honorable conditions.  The applicant was reduced to the lowest enlisted rank. 

4.  The applicant was discharged from the Army on 15 May 2003, with a characterization of service of under other than honorable conditions.

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

A positive urinalysis, dated 27 February 2003, coded as CO (Competence for Duty/Command Direct/Fitness for Duty), for cocaine and methamphetamines.  

EVIDENCE SUBMITTED BY THE APPLICANT: 

The applicant provided a DD Form 214.

POST-SERVICE ACTIVITY: 

The applicant states she has received an associate’s degree and is currently working on a bachelor’s degree.

REGULATORY AUTHORITY:

1.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate.

2.  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.

3.  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.  

DISCUSSION AND RECOMMENDATION:

1.  After a careful review of all the applicant’s military records, the issues, and the document submitted with the application, it appears the discharge was improper.  

2.  The record confirms that on 27 February 2003, the applicant was given a command directed urinalysis coded CO (Competence for Duty/Command Direct/Fitness for Duty), and she tested positive for cocaine and methamphetamines.  The CO coded test indicates the commander had reasonable suspicion that the applicant was using a controlled substance, but did not have probable cause.  She was the only Soldier tested as reflected on the DD Form 2624, Specimen Custody Document for Drug Testing which was also stamped as “confidential.”

3.  The limited use policy described in Army Regulation 600-85, Army Substance Abuse Program, prohibits the use by the government of protected evidence against a Soldier in actions under the UCMJ or on the issue of characterization of service in administrative proceedings.  Additionally, the policy limits the characterization of discharge to “Honorable” if protected evidence is used.  Protected evidence under this policy is limited to the results of a command-directed drug or alcohol testing that is inadmissible under the military rules of evidence.  Competence for duty test results may be used as a basis for administrative action to include separation, but shall not be used as a basis for an action under the UCMJ or be used to characterize a Soldier’s service.  The CO urinalysis rendered the court-martial charges, based on the limited use evidence, invalid.

4.  The records show the proper discharge and separation procedures were not followed in this case.  

5.  Therefore, the discharge being improper, recommend the Board grant full relief in the form of an upgrade of the characterization of service to “Honorable,” a change to the narrative reason for separation to “Secretarial Authority,” under the provisions of Chapter 5, Paragraph 5-3, AR 635-200, with a corresponding separation (SPD) code of "JFF" and an RE code of 1.  This action entails restoration of grade to E-4/SPC.  
SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: 	Records Review   Date:  3 July 2013     		Location: Washington, DC

Did the Applicant Testify?  No 

Counsel: 			None

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

Board Action Directed:
Issue a new DD Form 214:			Yes
Change Characterization to:		Honorable
Change Reason to:		Secretarial Authority 
Change Authority for Separation:		AR 635-200, Chapter 5, Paragraph 5-3, JFF
Change RE Code to:			RE-Code 1
Grade Restoration to:			E-4/SPC
Other:						NA






















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)		AR20130003335

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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