IN THE CASE OF:  	Ms. 

      BOARD DATE:  	2 May 2014

      CASE NUMBER:  	AR20130019940
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant’s record of service during the period of enlistment under review and the Discussion and Recommendation that follows, the Board noted that the government introduced the results of a command directed urinalysis into the discharge process.  This is limited use information as defined in AR 600-85.  Use of this information mandates award of an honorable discharge.  Accordingly, the Board voted to change the characterization of service to honorable.  However, the Board found the reason for discharge was fully supported by the record and voted not to change it.  




      
      
      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.  The applicant states, in effect, she was sexually assaulted while on active duty.  She contends she was raped prior to joining the military which aggravated her Post Traumatic Stress Disorder (PTSD).  
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			4 November 2013
b. Discharge Received:			General, Under Honorable Conditions
c. Date of Discharge:				15 August 2007
d. Reason/Authority/SPD/RE Code:		Misconduct (Drug Abuse), AR 635-200 
Chapter 14-12c(2), JKK, RE-4
e. Unit of assignment:				HHC, 44th Medical Command, Fort Bragg, NC
f. Current Enlistment Date/Term:		22 March 2006/3 years, 2 weeks
g. Current Enlistment Service:		1 year, 4 months, 24 days
h. Total Service:				3 years, 7 months
i. Time Lost:					None
j. Previous Discharges:			ARNG, 040428-040622, UNC
ARNG, 040722-060321, HD
ADT, 050103-050512, UNC
k. Highest Grade Achieved:			E-3
l. Military Occupational Specialty:		42A10, Human Resources Specialist
m. GT Score:					89
n. Education:					HS Graduate
o. Overseas Service:				None
p. Combat Service:				None
q. Decorations/Awards:			NDSM, GWOTSM, ASR
r. Administrative Separation Board: 		NA
s. Performance Ratings:			NA
t. Counseling Statements:			Yes
u. Prior Board Review:				No
SUMMARY OF SERVICE:		
	
The applicant reenlisted in the Regular Army on 22 March 2006 for a period of 3 years and 2 weeks. She was 21 years old at the time of reenlistment and a high school graduate.  Her record is void of any significant acts of valor or achievement.  She completed a total of 3 years and 7 months of creditable military service.  When her discharge proceedings were initiated, she was serving at Fort Bragg, North Carolina.
SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 23 June 2007, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, Chapter 14-12c, for wrongful use of marijuana on numerous occasions.

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

3.  On 20 June 2007, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and did not submit a statement in her own behalf.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  

4.  On 3 July 2007, the separation authority waived further rehabilitation efforts and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.  

5.  The applicant was separated on 15 August 2007, under Army Regulation 635-200, Chapter 14-12c, with a general, under honorable conditions discharge, an SPD code of JKK, and an RE code of 4.          

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.   There are two positive urinalysis reports contained in the record:

       IU, Inspection Unit, 17 April 2007, THC
       CO, Command Directed, 22 May 2007, THC

2.  Article 15, dated 8 May 2007, for wrongful use of marijuana.  The punishment consisted of reduction to the grade of E-1, forfeiture of $815 per month for two months (suspended), 45 days of extra duty (FG).

3.  DA Form 2627-2 (Record of Supplementary Action under Article 15, UCMJ), dated 4 June 2007, reflects the punishment imposed on 8 May 2007, was vacated because the appellant wrongfully used marijuana between 23 April 2007 and 22 May 2007. 

4.  Six negative counseling statements dated between 16 March 2007 and 18 April 2007, for failure to report x 3 (070316, 070321, 070406), failure to provide vehicle insurance x 2 (070406 and 070411), and missing formation.
      
5.  Report of Mental Status Evaluation, dated 24 May 2007, reflects the applicant had clear thought process and was mentally responsible.  She was diagnosed with marijuana abuse and depression. 
      
EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, dated 22 October 2013, and a DD Form 214.

POST-SERVICE ACTIVITY: 

The applicant did not provide any in support of her 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.

ANALYST’S DISCUSSION AND RECOMMENDATION:

1.  After a careful review of all the applicant’s military records, the issues submitted with the application, the characterization of service appears to be improper.  

2.  The record confirms that on 22 May 2007, the applicant was given a command directed urinalysis (CO) and she tested positive for marijuana.  On 4 June 2007, the command vacated the non-judicial punishment imposed on 8 May 2007, for wrongfully using marijuana based on that urinalysis. Her punishment for this offense was a reduction to the grade of E-1, forfeiture of $815 per month for two months (suspended), and 45 days of extra duty.

3.  If the test basis for the urinalysis was CO, as stated on the collection sheet, then the vacation of the imposed punishment was improper.  There is no indication in the chapter paperwork that the command recognized that the “Command Directed Urinalysis” could not be used as the basis for the vacation of punishment.  Further, there is no indication the command believed the urinalysis was improperly coded “CO.”  There also is no CID report or counseling statements that shed any light on the reason the urinalysis was authorized.  

4.  Therefore, it appears the urinalysis was properly coded CO, the vacation of imposed punishment was improper based on the limited use evidence, and the discharge was improperly characterized given the introduction of the limited use evidence in the chapter paperwork.  However, the question whether the urinalysis was properly coded is a question of fact for the Army Discharge Review Board to determine given the contrary conclusions that could be drawn by the command’s treating the urinalysis as though it was not limited use evidence.  The command was either unaware of the implications of the limited use policy or it failed to note in the record the urinalysis was improperly coded.  

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

6.  Therefore, the characterization of service being improper, recommend the Board grant full relief by upgrading the applicant’s characterization to honorable.  However, the reason for the discharge was fully supported by the record and remains both proper and equitable.   



SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review       Date:  2 May 2014       Location:  Washington, DC

Did the Applicant Testify?  NA 

Counsel:  None

Witnesses/Observers:  NA 

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

Board Action Directed:
Issue a new DD Form 214:		Yes
Change Characterization to:	Honorable
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)		AR20130019940



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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