IN THE CASE OF:  	

      BOARD DATE:  	23 March 2015

      CASE NUMBER:  	AR20150002341
___________________________________________________________________________

Board Determination and Directed Action

1.  After carefully examining the applicant's record of service during the period of enlistment under review, hearing her testimony, and considering the Discussion and Recommendation which follows, the Board determined that the characterization of service was too harsh based on the length of the applicant’s service, and the circumstances surrounding the discharge (i.e., the unit commander recommended the applicant be allowed to continue serving under her command and retained in the Army Reserve and if discharge recommended a general, under honorable conditions; the intermediate and senior commanders recommended approval of the separation action with a general, under honorable conditions discharge), and as a result, it is inequitable.

2.  Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to general, under honorable conditions.  However, the Board determined the reason for discharge was both proper and equitable, and voted not to change it.  This action entails restoration of grade to SPC/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 an upgrade of her discharge from under other than honorable conditions to honorable, and a change to the narrative reason for separation to include the reentry eligibility (RE) code.

2.  The applicant states through counsel, in effect, her constitutional liberty interest was violated by not having a hearing, was unjustly discharged, and reduced in rank.  She was unjustly discharged, and was not provided adequate notice for an opportunity to respond.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		12 February 2015
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			6 May 2012
d. Reason/Authority/SPD/RE:		Misconduct (Abuse of Illegal Drugs), AR 135-178 						Chapter 12, Paragraph 12-1d
e. Unit of assignment:			427th Medical Logistic Battalion, Forest Park, GA
f. Current Enlistment Date/Term:	11 April 2007, 8 years
g. Current Enlistment Service:	5 years, 26 days 
h. Total Service:			5 years, 26 days
i. Lost time:				None
j. Previous Discharges:		IADT (070426-071005)/UNC									   (Concurrent Service)
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	63B10, Wheeled Vehicle Mechanic
m. GT Score:				103
n. Education:				HS Graduate
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		NDSM, ASR
r. Administrative Separation Board: 	NIF
s. Performance Ratings:		None
t. Counseling Statements:		Yes
u. Prior Board Review:			No

SUMMARY OF SERVICE:

The applicant enlisted in the US Army Reserve on 11 April 2007, for a period of 8 years.  She was 20 years old at the time, and a high school graduate.  She was ordered to initial active duty training (IADT) on 26 April 2007; she trained in and was awarded military occupational specialty (MOS) 63B10, Wheeled Vehicle Mechanic.  She was released from IADT with an uncharacterized discharge, and returned to her unit.  Her record does not contain any evidence of acts of valor or meritorious achievements; and she achieved the rank of SPC/E-4.  She was serving in Forest Park, Georgia, when her discharge was initiated.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record shows that on 5 November 2011, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 12, paragraph 12-1d, AR 135-178, by reason of misconduct-abuse of illegal drugs for testing positive for Marijuana (101120).

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

3.  On 5 November 2011, the unit commander also suspended the separation action for 45 days to afford the applicant the opportunity to consult with legal counsel and exercise her legal rights; and within 30 calendar days after she receives this memorandum, unless she requested and received an extension.  Failure to respond within 30 calendar days of the date of her receipt of this memorandum would constitute a waiver of her rights.  The unit commander subsequently recommended the applicant be allowed to continue serving under her command and be retained in the US Army Reserve.  The intermediate and senior commanders reviewed the proposed action and recommended approval with a general, under honorable conditions discharge.

4.  On 22 April 2012, the separation authority waived further rehabilitative efforts and directed the applicant’s discharge with a characterization of service of under other than honorable conditions.  The applicant was not reduced to the lowest enlisted rank as required by Army Regulations.

5.  The applicant was discharged from the Army on 6 May 2012, with a characterization of service of under other than honorable conditions under the provisions of Chapter 12, paragraph 12-1(d), AR 135-178.

6. The applicant’s service record does not contain any evidence of unauthorized absences, time lost, or any actions under the Uniformed Code of Military Justice (UCMJ).

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Reduction/Discharge Orders 12-122-00023, dated 1 May 2012.

2.  DD Form 214, dated 5 October 2007

3.  A positive urinalysis report coded IR (Inspection Random), dated 20 November 2010, for THC.

4.  A negative counseling statement, dated 22 March 2011, for testing positive for illegal drugs.

5. Enlistment/Reenlistment document, dated 11 April 2007.


EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, and an attorney’s brief (four pages).

POST-SERVICE ACTIVITY:

The applicant did not provide any information with the application.

REGULATORY AUTHORITY:

1.  Army Regulation 135-178 sets forth the basic authority for the separation of enlisted personnel from the United States Army Reserve.  Chapter 12 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, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  

2.  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.

3.  The narrative reason for enlisted Soldiers who are discharged under the provisions of Army Regulation 135-178, Chapter 12, paragraph 12-1d, is misconduct (abuse of illegal drugs).

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of the characterization of her discharge, and a change to the narrative reason for separation to include the RE code was carefully considered.

2.  After examining the applicant’s record of service, her military records, the issues and document submitted with the application, there are several mitigating factors to merit a partial upgrade of the applicant's discharge to general, under honorable conditions for the following reasons:

     a.  Length of the applicant’s service:  the evidence of record shows the applicant served      5 years, and 26 days of her current eight year enlistment, thus the preponderance of her service was honorable.

     b.  Circumstances surrounding the discharge (i.e., the unit commander recommended the applicant be allowed to continue serving under her command and retained in the US Army Reserve and if discharge recommended a  characterization of service of general, under honorable conditions; the intermediate and senior commanders recommended approval of the separation action with a general, under honorable conditions discharge).


3.  This recommendation is made after consideration of all of the applicant’s faithful and honorable service, as well as the record of misconduct.  The available evidence in this case supports a conclusion that the applicant’s characterization of service may be too harsh, and as a result, inequitable. 

4.  In view of the foregoing, the characterization of service is inequitable and the analyst recommends the Board grant partial relief in the form of an upgrade of the characterization of service to general, under honorable conditions.

5.  The applicant requested a change to the narrative reason for separation and to include the RE code.  The narrative reason for enlisted Soldiers who are discharged under the provisions of Army Regulation 135-178, Chapter 12, paragraph 12-1d, is misconduct (abuse of illegal drugs).  

6.  Further, AR 601-210 determines US Army Reserve reentry eligibility and provides regulatory guidance on the RE codes.  These codes are not applicable to RC Soldiers being separated for other than cause.

7.  The applicant contends her constitutional liberty interest was violated, by not having a hearing; and reduced in rank.  The applicant failed to respond within 30 calendar days of the date of her receipt of the notification memorandum exercising her election of rights which constituted a waiver of her rights to an administrative separation Board.

8.  Also, AR 135-178, paragraph 2-9 (5) states when a Soldier is to be discharged under other than honorable conditions, the separation authority will direct an immediate reduction to E-1, in accordance with AR 600-8-19, Chapter 10.

9.  Furthermore, regarding the applicant’s request for an honorable discharge, 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.

10.  The applicant additionally contends she was unjustly discharged and was not provided adequate notice for an opportunity to respond.  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 contention.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that she was unjustly discharged.

11.  Therefore, the reason for discharge was fully supported by the record and therefore, remains both proper and equitable.  This action entails a restoration of grade to SPC/E-4.
(See paragraph 4 above).



SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Personal Appearance     Date:  23 March 2015     Location:  Washington, DC

Did the Applicant Testify:  Yes

Counsel:  Yes

Witnesses/Observers:  None

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

1.  The applicant submitted the following additional documents:

     a.  Character Letters (12 pages)

     b.  LES (24 pages)

     c.  Email Traffic (14 pages)

     d.  Pictures (6)

2.  The applicant presented no additional contentions.

In addition to the evidence in the record, the Board carefully considered the additional documents, and testimony, presented by the applicant at the personal appearance hearing.

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 Discharge Orders:		Yes
Change Characterization to:		General, Under Honorable Conditions
Change Reason to:				No Change
Change Authority for Separation:		No Change
Change RE Code to:			No Change
Grade Restoration to:			SPC/E-4
Other:						No Change



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)		AR20150002341



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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