IN THE CASE OF:  	

      BOARD DATE:  	2 August 2013

      CASE NUMBER:  	AR20130004357
___________________________________________________________________________

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 her general, under honorable conditions discharge be upgraded to honorable.

2.  The applicant states, in effect, the following:

     a.	She was physically assaulted by another service member on 1 July 2011.  She contends she could not deal with the aftermath of her emotions, and she did seek therapy, but it was not enough after not receiving any information on the investigation from CID.  She took one of her husband's morphine pills on the morning of the urinalysis, and tested positive.  

     b.	She further contends that she was moved to a different battery, but no one cared what she had been through and she was advised to "Soldier On."  She took the morphine as an escape.

     c.	She regrets her actions, and knows she threw everything she worked so hard for out the window.  She is now attempting to rebuild her life from a very shameful situation.  She would like to get a good job, but her discharge prevents this.  She has been unemployed for 15 months; she would like to get her education, but is disqualified from receiving her Post 9-11 GI Bill.
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			27 February 2013
b. Discharge Received:			General, Under Honorable Conditions
c. Date of Discharge:				21 November 2011
d. Reason/Authority/SPD/RE Code:		AR 635-200, Para 14-12c, JKQ, RE-3
e. Unit of assignment:				A Bty, 4th Bn, 3rd ADA, 31st AD Bde								Fort Sill, OK
f. Current Enlistment Date/Term:		28 May 2009, 4 years
g. Current Enlistment Service:		2 years, 5 months, 24 days
h. Total Service:				5 years, 3 months
i. Time Lost:					None
j. Previous Discharges:			RA/20060822-20090527/HD
k. Highest Grade Achieved:			E-4
l. Military Occupational Specialty:		14T10, Patriot Oper/Maint
m. GT Score:					101	
n. Education:					HS Letter
o. Overseas Service:				SWA
p. Combat Service:				Iraq (20081014-20090216)
q. Decorations/Awards:			AAM, AGCM, NDSM, GWOTEM, GWOTSM								NCOPDR, ASR
r. Administrative Separation Board: 		No
s. Performance Ratings:			No
t. Counseling Statements:			Yes
u. Prior Board Review:				No
SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 22 August 2006 for a period of 3 years; she reenlisted on 28 May 2009 for a period of 4 years.  She was 25 years old at the time of entry into the Army.  She served in Iraq, and earned an AAM and AGCM.  She completed 5 years and 3 months of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 9 November 2011, the commander notified the applicant of initiation of separation action under Army Regulation 635-200, paragraph 14-12c, for commission of a serious offense, testing positive for Morphine with a level of 20483 ng/ml.  

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

3.  On 9 November 2011, 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.  She also indicated she was not a victim of sexual assault for which an unrestricted report was filed within the past 24 months, and she did not believe that the separation action was a direct or indirect result of sexual assault itself or of the filing of the unrestricted report.  

4.  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.  

5.  The separation authority approved the recommended discharge in an undated memorandum, and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.   

6.  The applicant was separated on 21 November 2011, under Army Regulation 635-200, Chapter 14-12c, with a general, under honorable conditions discharge, an SPD code of JKQ, and an RE code of 3.  

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  There is one positive urinalysis report contained in the record.  
 	PO, Probable Cause, 19 September 2011, morphine
      
2.  A counseling statement, dated 16 September 2011, for altering a urine sample.

3.  There is no evidence of UCMJ action in her official record

EVIDENCE SUBMITTED BY THE APPLICANT:

DD Form 214, with enclosed statement

POST-SERVICE ACTIVITY: 

None Listed  

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.  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, her military records, 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 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.  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, 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.

3.  The applicant contends she was assaulted on 1 July 2011, and although she was under the care of mental health officials and prescribed medication, it was not enough after not receiving information from CID on the status of the investigation.  

     a.	On 9 November 2011, in consultation with her appointed counsel, she signed a statement indicating that she was not a victim of sexual assault for which an unrestricted report was filed within the past 24 months, and she did not believe her separation action was a direct result of the sexual assault itself or of the filing of the unrestricted report.

     b.	She was counseled on 16 September 2011, by her section chief, for altering her urine sample.  When confronted, she confessed to the 1SG that the unknown fluid in her sample was toilet water.  The applicant agreed with the counseling and signed the form.

     c.	In her Report of Medical Examination (DD Form 2808), dated 21 October 2011, the medical examiner noted she had a normal psychiatric examination.

     d.	In her Report of Medical History (DD Form 2807-1), dated 21 October 2011, the applicant reported she was taking Ritalin, Prozac, and Seraqual; and, that she had received treatment for nervous trouble, frequent trouble sleeping, depression or excessive worry, and had used illegal drugs.  

          (1)  She also indicated she had received counseling and had been evaluated or treated for a mental condition.  In addition, she noted, "post-partum depression 2008, anxiety, depression due to assault July 01, 2011, Bldg 4700, have trouble falling asleep and nightmares due to assault in July 01 2011 [sic], currently treated at Mental Health for anxiety and depression and sleep problems due to assault in July 01 2011 [sic]."

          (2)  The medical examiner noted, "physical assault, still with anxiety/dep/PTSD issues."

     e.  In her Report of Medical Assessment (DD Form 2697), dated 20 October 2011, the applicant noted she had depression, anxiety and sleep problems due to assault; that she was injured in the assault; and, that she was under Mental Health care of the assault.

     f.  Report of Mental Status Examination (DA Form 3822), conducted on 6 October 2011, cleared the applicant for separation under the provisions of Chapter 14, Army Regulation 635-200. 

          (1)  The examiner indicated she had no obvious impairments; her perception was normal; she was unlikely to be impulsive; she could understand and participate in administrative proceedings; could appreciate the difference between right and wrong; and, met medical retention standards.

          (2)  She was diagnosed with PTSD; the examiner indicated the condition was not present or, if present, did not meet criteria for a medical evaluation board.

          (3)  Further, the medical examiner noted the applicant wanted to be retained in the Army, and she was neither suicidal nor homicidal.

4.  Given the foregoing, there appears to be sufficient evidence of a physical assault in July 2011.  At the time of her discharge she indicated she was not "sexually assaulted," and she only refers to a "physical" assault.  The medical examiners also refer to a "physical" assault, without an indication of whether it was sexual.  Therefore, it is presumed the applicant was assaulted, albeit non-sexual in nature.

5.  Careful consideration was given to the evidence in mitigation; however, it is insufficient to overcome the reason for discharge and characterization of service granted.  The evidence shows she could distinguish right from wrong; her perception was normal; she knowingly attempted to alter her urine specimen during the urinalysis; and, she accepts responsibility for her actions, which she characterizes as "careless and frivolous."  She was receiving mental health care, and she was already on three medications to manage her symptoms of depression and anxiety, without resorting to using her husband's morphine.  She had many legitimate avenues through which to obtain assistance or relief before committing the misconduct which led to the separation action under review.  

6.  The applicant's contentions regarding employment and access to the GI Bill were noted. Regrettably, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities, or in obtaining access to GI Bill benefits.  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.  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:  2 August 2013          Location: Washington, DC

Did the Applicant Testify?  No 

Counsel: 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: 		No Change
Change RE Code to:			No Change
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)		AR20130004357



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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