IN THE CASE OF:  	Ms. 

      BOARD DATE:  	23 August 2013

      CASE NUMBER:  	AR20130003395
___________________________________________________________________________

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 upgrade of her general, under honorable conditions discharge to honorable.
 
2.  On behalf of the applicant, counsel states, in effect, the applicant’s discharge is inequitable and should be recharacterized to honorable pursuant to 32 C.F.R. §70.6(c)(1) because:

a. Current standards are more liberal than those under which the applicant was discharged;
	b. The character of discharge was too harsh at the time it was issued;
	c. The quality of service outweighs the drug use; and/or
	d. Drug use did not impair the applicant’s ability to serve.

3.  Counsel also raises other issues such as miscellaneous equity issues that should be considered for a simple possession, usage off duty, usage off the military base, and no sales-trafficking.  In addition, counsel continues his argument, by stating, in effect, as interpreted by the federal courts, discharging a service member with a less than honorable discharge for conduct that (1) does not result in deficiency in performance of the service members military duty, and (2) does not have a direct impact upon military service exceeds the military’s statutory authority and violates due process.  Lastly, the applicant would like to be able to receive her benefits and use of the GI bill. 

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		19 February 2013	
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			11 February 2011	
d. Reason/Authority/SPD/RE Code:	Misconduct (Drug Abuse), AR 635-200, 14-12c(2), 						JKK, RE-4	
e. Unit of Assignment:			A Company, 1st Brigade Special Troops Battalion, 1st 					Brigade Combat Team, 1st Cavalry Division, Fort 						Hood, TX	
f. Current Enlistment Date/Term:	28 May 2009, 3 years, 32 weeks
g. Current Enlistment Service:	1 year, 8 months, 14 days
h. Total Service:			1 year, 8 months, 14 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-3
l. Military Occupational Specialty:	35F10, Intelligence Analyst
m. GT Score:				118
n. Education:				HS Graduate	
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		NDSM, GWOTSM, ASR
r. Administrative Separation Board: 	No	
s. Performance Ratings:		None
t. Counseling Statements:		Yes
u. Prior Board Review:			No

SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 28 May 2009, for a period of 3 years and 
32 weeks.  She was 19 years old at the time of entry and a high school graduate.  She received her training at Fort Huachuca, AZ and was assigned to Fort Hood, TX.  She had no special awards or meritorious achievements.  

SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 19 January 2011, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, paragraph 14-12c(2), for misconduct (drug abuse), specifically for testing positive for cocaine (between 101102-101109).

2.  Based on the above misconduct, the commander recommended a general, under honorable conditions discharge and advised the applicant of his rights.

3.  On 19 January 2011, the applicant waived legal counsel, was advised of the impact of the discharge action, and indicated she would not submit a statement in 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 25 January 2011, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.  

5.  The applicant was separated on 11 February 2011, under Army Regulation 635-200, Chapter 14-12c(2), with a general, under honorable conditions discharge, an SPD code of JKK, and an RE code of 4.               

6.  The service record does not contain any evidence of time lost.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.   There is one positive urinalysis reports contained in the record coded as IU, Inspection Unit, 9 November 2010, cocaine.

2.  One negative counseling statement dated 14 December 2010, for a positive urinalysis.

3.  A Field Grade Article 15, dated 15 December 2010, for wrongfully using cocaine (between 101102-101109).  Her punishment consisted of a suspended reduction to the grade of E-1, forfeiture of $723.00 per month for 2 months, and extra duty for 45 days.

EVIDENCE SUBMITTED BY THE APPLICANT:

On behalf of the applicant, counsel provided a DD Form 293; a statement; three letters of support; memoranda for the Department of Veterans Affairs, four pages; case separation documents, 57 pages, and a copy of an article from the Army Times.
 
POST-SERVICE ACTIVITY: 

None were provided with the application.

REGULATORY AUTHORITY:

1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 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 being absent 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 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.

3.  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.  On behalf of the applicant, counsel’s request for an upgrade of the characterization of her discharge 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.  

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 (cocaine), 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.  Counsel 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.  Counsel contends the event that led to the applicant’s discharge of using cocaine was an isolated event, a simple possession, usage that occurred off duty, off the military base, and there was no sales-trafficking involved.  Although a single incident/simple possession, that the usage took place off duty, off post and did not involve trafficking, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army.  The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization.  

5.  Counsel contends the applicant’s discharge is inequitable due to current standards being more liberal than those under which the applicant was discharged, and the drug use did not impair the applicant’s ability to serve.  The US Army drug policy standards are no more liberal now than in the past.  The applicant 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.  

6.  Counsel contends the character of discharge was too harsh at the time it was issued and the quality of service outweighs the drug use.  The applicant’s service accomplishments and the quality of her service prior to the incident that caused the initiation of discharge proceeding were carefully considered.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge as shown by the documented action under Article 15 of the Uniform Code of Military Justice.

7.  Counsel contends that an upgrade of the applicant’s 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.

8.  Lastly, the record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.   The character of the applicant’s discharge is commensurate with her overall service record.  

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

10.  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: Records Review       Date:  23 August 2013        Location: Washington, DC

Did the Applicant Testify?  NA

Counsel: yes [ redacted ]

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:	NA
Change RE Code to:		NA
Grade Restoration to:		NA
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)		AR20130003395



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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