IN THE CASE OF:  	Ms. 

      BOARD DATE:  	4 October 2013

      CASE NUMBER:  	AR20130003969
___________________________________________________________________________

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 discharge from general, under honorable conditions to honorable.

2.  The applicant states, in effect, that she served honorably as an officer and does not feel her treatment was equitable.  She was given a hair follicle test that should have cleared the accusations against her, however does not believe she was fairly treated and that the evidence was not taken into account.  She contends she served in combat and received stellar report and several awards to include three ARCOM's.  She is two courses away from completing her master's degree in logistics and supply chain management.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			25 February 2013
b. Discharge Received:			General, Under Honorable Conditions 
c. Date of Discharge:				30 September 2011				
d. Reason/Authority/SPD/RE Code:		Unacceptable Conduct, AR 600-8-24,									paragraph 4-2b, JNC, NA
e. Unit of assignment:				(R) Det Co, 1st STB, 1st BCT (R) (P), Fort 							Carson, CO
f. Current Entry Date/Term:			17 May 2007, NIF
g. Current Term Net Active Service:		4 years, 4 months, 14 days
h. Total Service:				10 years, 2 months, 6 days
i. Time Lost:					None
j. Previous Discharges:			USAR-010725-020710/NA											RA-020711-070516/HD
k. Highest Grade Achieved:			O-2
l. Branch:					92A, General
m. GT Score:					NA
n. Education:					14 years
o. Overseas Service:				Southwest Asia
p. Combat Service:				Iraq (071118-090217)
q. Decorations/Awards:			ARCOM-3, AAM-2, AGCM, NDSM,								ICM-w/2CS, GWOTSM, ASR, OSR, CAB
r. Administrative Separation Board: 		No  
s. Performance Ratings:			Yes
t. Counseling Statements:			Yes
u. Prior Board Review:				No



SUMMARY OF SERVICE:	

After serving in the United States Army Reserve and Regular Army for a period of 5 years,      9 months, and 22 days as an enlisted Soldier; on 17 May 2007 the applicant was commissioned as a second lieutenant and ordered to active duty.  She was 23 years old at the time.  She was serving at Fort Carson, CO when her discharge was initiated.  Her record indicates she served in Iraq during a prior period of service.  She achieved the rank of     1LT/O-2, and earned several awards to include three ARCOM's, two AAM's, AGCM, and the CAB.  She completed a total of 10 years, 2 months, and 6 days of total military service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record shows that on 26 May 2011, the applicant was notified of initiation of elimination proceedings under the provisions of Chapter 4, paragraph 4-2b(5)(8) and          4-2c(5), AR 600-8-24, by reason of acts of personal misconduct, conduct unbecoming an officer, and adverse information file in her AMHRR.

2.  The applicant was directed to show cause for retention in the Army after:

a. receiving a General Officer Memorandum of Reprimand for personal misconduct involving drug use (110401)

b. testing positive for THC during a unit inspection urinalysis test indicating wrongful use of marijuana (101018)

c. making a statement after being notified of a positive result to her battalion commander "I've been around people who smoke" illegal drugs; then gave a sworn statement to military police investigators claiming she had not been around anyone who smoked marijuana)

d. having a General Officer Memorandum of Reprimand filed in her AMHRR (110520)

3.  She was advised that she could submit a sworn or unsworn statement, submit a written rebuttal, request for resignation in lieu of elimination, or apply for retirement in lieu of elimination.

4.  On 24 June 2011, the applicant submitted a rebuttal statement under the provisions of Chapter 4, AR 600-8-24, in lieu of further elimination proceedings.  The applicant was a probationary officer and therefore not entitled to appear before a board of officers (Board of Inquiry). 

5.  On 30 June 2011, the Commander, Headquarters, Fort Carson, Fort Carson, CO, after reviewing the rebuttal matters submitted by the applicant, recommended approval of the applicant's elimination from the service with a characterization of service of general, under honorable conditions.
6.  On 7 April 2006, the Deputy Assistant Secretary (Army Review Boards) approved the recommendation of the Army Board of Review Board for Elimination and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.  The elimination was based on misconduct and moral or professional dereliction (AR 600-8-24, para 4-2b) and derogatory information (AR 600-8-24, para 4-2c).

7.  The applicant was discharged from the Army on 30 September 2011, with a characterization of service of general, under honorable conditions under the provisions of Chapter 4, paragraph 4-2b, AR 600-8-24, for unacceptable conduct, with a Separation Program Designator code (SPD) of JNC. 

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  There is a positive urinalysis report contained in the record coded; IU (Inspection Unit),       18 October 2010, THC.

2.  There is a negative urinalysis report contained in the record coded; IR (Inspection Random), 3 November 2010.

3.  Army Substance Abuse Program (ASAP) Enrollment, document for a positive urinalysis 

4.  Annual OER (070517-080516), the rater assessed her as Satisfactory Performance/Promote and the senior rater as Best Qualified/no block check.

5.  Change of Rater OER (080517-081023), the rater assessed her as Outstanding Performance/Must Promote and the senior rater as Best Qualified/no block check.

6.  Change of Duty OER (081024-090518), the rater assessed her as Outstanding Performance/Must Promote and the senior rater as Best Qualified/no block check.

7.  Annual OER (090519-100518), the rater assessed her as Outstanding Performance/Must Promote and the senior rater as Best Qualified/no block check.

8.  Annual OER (100518-110517), the rater assessed her as Unsatisfactory Performance/Do Not Promote and the senior rater as Do Not Promote/no block check.

9.  Academic Evaluation Report (071017), QM Basic Officer Leader Course, applicant achieved course standards.

10.  A negative counseling statement, dated 6 December 2010, for testing positive for use of THC.


EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, drug screening document, with a collection date of    16 December 2010, college transcripts, copies of certificates for award of ARCOM's, AAM's and the AGCM, certificates of achievement, appreciation, affiliation, and training, orders for award of the CAB, and documents from her officer candidate selection program packet. 

POST-SERVICE ACTIVITY: 

The applicant states, in effect, since her discharge she has been a full time student with a 3.9 grade point average, a stay at home mother, highly active at her local gym, and will soon pursue certification as a personal trainer.

REGULATORY AUTHORITY:

1.  Army Regulation (AR) 600-8-24, Officer Transfers and Discharges, sets forth the basic authority for the separation of commissioned and warrant officers.  Chapter 4 outlines the policy and procedure for the elimination of officers from the active Army for substandard performance of duty, misconduct, moral or professional dereliction, and in the interest of national security.

2.  AR 600-8-24, paragraph 1-22a, provides that an officer will normally receive an honorable characterization of service when the quality of the officer’s service has met the standards of acceptable conduct and performance of duty.  An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.

3.  A general under honorable conditions characterization of service will normally be issued to an officer when the officer’s military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A separation under honorable conditions will normally be appropriate when an officer submits an unqualified resignation or a request for relief from active duty under circumstances involving misconduct which renders the officer unsuitable for further service, unless an under other than honorable conditions separation is appropriate.

4.  A discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable.  An officer will normally receive an under other than honorable conditions when they resign for the good of the service, are dropped from the rolls of the Army, are involuntarily separated due to misconduct, moral or professional dereliction, or for the final revocation of a security clearance as a result of an act or acts of misconduct.







DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of the characterization of her discharge was carefully considered.  However, after examining the applicant’s record of service, the documents and the issue submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge.  

2.  The record confirms 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 Army officers.  It brought discredit on the Army and was prejudicial to good order and discipline.  By her misconduct, the applicant diminished the quality of her service below that meriting an honorable discharge.  

3.  The applicant provided no corroborating evidence demonstrating that either the command's action was erroneous or that his service mitigated the unacceptable conduct or poor duty performance.  Further, the applicant’s record contains no evidence of arbitrary or capricious actions by the command.  It appears that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  The applicant contends she had good service and deserves an honorable characterization.  However, by regulation, a UOTHC discharge is normally appropriate for a member separated by reason of misconduct.  It appears the applicant’s generally good record of service was the basis for her receiving a GD instead of the normal UOTHC discharge.  

5.  The applicant contends her discharge was inequitable and that she was unjustly discharged.  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 this issue.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that her discharge was inequitable or that she was unjustly discharged.  

6.  The evidence of record shows the applicant's positive urinalysis test was a result of the command’s random urine testing program to maintain good order and discipline within the unit.  The applicant, by violating the Army's policy not to possess or use illegal drugs, compromised the special 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 that ultimately caused her discharge from the Army.

7.  The applicant also contends she was given a hair follicle test that should have cleared the accusations against her.  Marijuana, if used once or infrequently, normally is detectable in a urine sample for 3 to 5 days.  With frequent use, the metabolite gets stored in fatty tissue and a sample could test positive for up to 30 days.  The applicant indicates she had a test performed on 16 December 2011, using the hair follicle method by a private laboratory; however, there is no way of knowing if it was even the applicant's hair that was tested.  Even if it was, a hair follicle test would not always show a one-time or infrequent use of marijuana.
8.  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.  Therefore, the reason for discharge and 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: 4 October 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)		AR20130003969



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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