RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 19 June 2007 DOCKET NUMBER: AR20060015019 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. Ms. Catherine C. Mitrano Director Ms. Joyce A. Wright Analyst The following members, a quorum, were present: Ms. Barbara J. Ellis Chairperson Mr. Frank C. Jones Member Mr. Qawiy A. Sabree Member Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1.  The applicant requests, in effect, that her records be corrected to show that she completed 20 years of active Federal service (AFS) for an active duty retirement. 2.  The applicant states, in effect, that she was honorably released from active duty 36 days prior to completion of 20 years of AFS for an active duty retirement. She also states that her release from active duty was unjust. 3.  In an additional statement, the applicant states that she is filing a complaint because she believe that an injustice has been done towards the decision made by the Secretary of the Army (SA) to honorably separate her instead of honoring her 20 year retirement.  After completion of 19 years, 9 months, on 2 October 2006, she received notification and disposition of her administrative separation board.  She was informed that she was denied approval of her 20-year retirement, 36 days prior to completion of 20 years AFS, and that she would be separated on 30 November 2006, with completion of 19 years, 11 months, and 29 days of military service.  She had accrued 89.5 days of leave for retirement and was forced to take 60 days immediately and lost 29.5 days leave. 4.  During her retirement/separation physical, she was informed that she was anemic and had to have major surgery which was scheduled on 24 October 2006, with 6 weeks recovery.  She was also informed that her surgery, clearing of the installation, and outprocessing would all have to be done during her leave time. 5.  The applicant elaborated on the details of her prior service conduct in the Regular Army (RA) and current conduct, of consuming marijuana unknowingly, which led to her administrative separation board.  She concludes that after destroying her RA career in 1997, she would never have jeopardized her retirement because of her family. (Her RA service records are unavailable for review). She earned her retirement instead of the honorable discharge. 6.  The applicant provides a copy of her separation orders, administrative board proceedings, with attachments, and several documents from her official military personnel file (OMPF), in support of her request. CONSIDERATION OF EVIDENCE: 1.  The applicant's military records show that she enlisted in the Louisiana Army National Guard (LAARNG), for 3 years, on 26 March 1998, in the pay grade of E-4, with prior RA service, with an established expiration of term of service (ETS) of 25 March 2001.  2. On 8 September 2000, the applicant extended her enlistment for 3 years. A new ETS of 25 March 2004 was established for her. On 15 August 2002, she extended her enlistment again for 3 years with a new ETS of 25 March 2007. 3. The applicant was promoted to sergeant first class (SFC/ E-7) effective 24 October 2002.  4.  The applicant was ordered to active duty in the Active Guard Reserve (AGR) effective 6 January 2003, for a period of 3 years and 6 months (6 January 2003 to 5 July 2006).  She was attached to the 3rd Army, G1, Reserve Affairs, Fort McPherson, Georgia, to serve as the Operations NCO. 5.  On 1 April 2005, the applicant tested positive for marijuana during a random unit-wide urinalysis.  6.  On 2 June 2005, the applicant was punished under Article 15, Uniform Code of Military Justice (UCMJ), for wrongful use of marijuana (THC [tetrahydrocannabinol]).  Her punishment consisted of extra duty for 30 days and a forfeiture of pay, in the amount of $1,705.00 for 2 months, (suspended). 7.  On 30 July 2005, the applicant's commander notified her that he was initiating action to separate her from the service under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for wrongful use of marijuana.  He recommended that she be retained and allowed to fulfill her military service obligation (MSO).  He informed her that the intermediate commanders and separation authority were not bound by his recommendation.  The separation authority could direct that her service be characterized as honorable, under honorable conditions, or under other than honorable conditions.  He stated that if his recommendation was approved, she would be allowed to fulfill her MSO in the US Army.  She had the right to consult with counsel and could request a hearing before an administrative separation board. 8.  On 1 August 2005, the applicant requested that she be retained on active duty for retirement to serve out her MSO of 24 years or 20 years AFS which would be completed on 31 January 2007 for retirement.  She stated that she had served her country with great dignity, pride, and honor for 19 years and 7 months.  She had been deployed twice to Kuwait and was proud to wear the uniform.  9. She stated that on 27 March 2005, while visiting a family member prior to returning to Atlanta, she used poor judgment by picking up a Black & Mild cigar from her niece's table.  She knew that her niece smoked marijuana, but to her knowledge, she was unaware the cigar, which she picked up from the table and started smoking, was laced with marijuana, until she noticed the smell after a few puffs.  She immediately disposed of the cigar and panicked.  10. The applicant continued that on 1 April 2005, 5 days later, she was informed that she had to give a urine sample for the company urine test.  She was afraid to give the urine sample because of the possibility of her having a positive test result.  Instead of informing her chain of command of the incident, she thought that she would be okay because of the small amount of marijuana that was consumed through the cigar. 11. She stated that she was a smoker of cigarettes and cigars and was not a smoker of illegal substances, and she did not consume the marijuana knowingly.  Prior to her positive test results in April, she had been tested on a random basis and all of her results were negative.  She elaborated on her prior misconduct and stated she was aware of the no tolerance rule for the use of illegal substances for one of her rank. 12. On 5 August 2005, her commander submitted his recommendation to separate the applicant from the service prior to her expiration of her current term of service.  His recommendation included her prior misconduct in the RA which was learned through a search of the Crime Records Center. 13. The character reference memorandums provided by the applicant, dated 10 and 12 August 2005, prepared by two sergeants major (SGM), attest to her strong relationship with her family, integrity, moral courage, and her leadership by example. The SGMs indicated that she displayed a deep dedication to mission accomplishment, a fierce loyalty to her section and its Soldiers, and that she had earned the respect of the officer and enlisted leadership but more importantly, those she served. 14.  On 15 August 2005, she acknowledged receipt of her commander’s recommendation to separate her from service and was advised of her rights to consult with counsel. 15.  On 24 August 2005, the applicant consulted with counsel and requested consideration of her case by and appearance before a board of officers.  She also requested representation by counsel. 16.  On 1 September 2005, the applicant’s battalion commander recommended that she be separated from the Army prior to the expiration of her current term of service, under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for wrongful use of marijuana.  He recommended that her service be characterized as under other than honorable conditions. 17. On 3 September 2005, the Staff Judge Advocate (SJA) advised the Commander, 3rd Army, of the specifics of the applicant’s misconduct, the recommendation made by members of her chain of command, and his recommendation that the applicant appear before an administrative separation board. 18. On 4 September 2005, the applicant was informed, by the Commanding General (CG), 3rd Army, that she would appear before an administrative separation board to determine if she would be separated and whether her service should be characterized as either honorable, general (under honorable conditions), or under other than honorable conditions (UOTHC). 19.  On 4 November 2005 the Chief, ARNG Staff Management Office, National Guard Bureau (NGB), prepared a memorandum for the applicant, Subject:  Results of the Title 10 FY (fiscal year) 05 Enlisted Active Service Tour Continuation Board (ASTCB).  The NGB informed the applicant that the ASTCB had recommended her for subsequent duty in the AGR Program and she was extended until 31 January 2009. 20.  On 8 November 2005, the applicant was notified by counsel that she would appear before a board of officers.  She was informed that certain witnesses would appear and she requested additional witness, including her niece, to appear as witnesses for her. 21.  On 15 November 2005, the applicant appeared before the separation board, with counsel.  The majority of board members found that the applicant did wrongfully use a controlled substance, to wit: marijuana.  One board member indicated that based on the witness positive statements about the respondent and the sworn statement of the respondent she felt that there was enough credibility in and believability in the respondent to say that she did not knowingly use marijuana.  He believed that the applicant was in a situation whereby she followed a habit of hers and automatically picked up a cigar and just smoked it before finding out it was laced with marijuana.  He believed that she stopped smoking upon realizing this fact and these puffs included, not tobacco, but marijuana.  Two of the board members recommended that she be honorably separated.  The board member who had found that she did not wrongfully use a controlled substance recommended that she be retained. 22. On 3 January 2006, the SJA advised the Commander, 3rd Army, of the proceedings of the administrative separation board which recommended that the applicant be separated from the service before the expiration of her current enlistment and prior to her retirement. 23. On 3 January 2006, the applicant completed an Application for Voluntary Retirement (DA Form 2339) with a desired effective date of 1 February 2007.  She requested 89 days of transition leave from 4 November 2006 to 31 January 2007. This application was signed by her commander on the same day. 24.  On 4 January 2006, the CG, Headquarters, 3rd United States Army, prepared a memorandum for Headquarters Department of the Army (DA), Subject:  Separation under Army Regulation 635-200, chapter 14, paragraph 14-12c.  The CG stated that he concurred with the board's recommendation to separate the applicant before the expiration of her current enlistment and prior to her retirement.  He recommended that she receive a general discharge. 25.  On that same day, the CG informed the State Adjutant General (AG), LAARNG, that they should review the entire file, considering the seriousness of the applicant's misconduct, and discharge her from the LAARNG.  The CG also informed the State AG of her prior record of misconduct. 26.  On 5 January 2006, the applicant completed a DA Form 4187 (Personnel Action) requesting voluntary retirement.  Her commander recommended approval on the same day. 27. On 1 May 2006, the Chief, Mobilization Support Branch, U. S. Army Human Resources Command (AHRC)-Alexandria, prepared a memorandum for Headquarters, 3rd Army, United States Army Forces Central Command, Coalition Forces Land Component Command, Fort McPherson, Georgia, Subject:  Request for Early Separation and Discharge from Active Duty, pertaining to the applicant.  AHRC informed the applicant that her request was reviewed in accordance with Army Regulation 635-200, chapter 14, paragraph 14-12c, and was approved.  Her separation date would be no later than 11 May 2006. 28.  On 1 August 2006, the office of the State AG notified the applicant that she had completed the required years of service to be eligible for retired pay, on application, at age 60 (20-Year Letter). 29. On 14 September 2006, the Office of the Assistant Secretary of the Army (Manpower and Reserve Affairs) (ASA/MRA) prepared a memorandum for the Deputy Chief of Staff, G1, Subject:  Separation under the Provisions of Army Regulation, Chapter 14-12c (Commission of a Serious Offense).  ASA/MRA approved the involuntary separation of the applicant and directed that she be discharged from the LAARNG and the Reserve of the Army with her service characterized as honorable. 30.  On 28 September 2006, the Chief Enlisted Career System Division, Office of the Deputy Chief of Staff G1, prepared a memorandum for the Chief, NGB, Subject:  Involuntary Separation. This official informed the Chief, NGB, that the applicant's separation was approved by ASA/MRA.  Her service would be characterized as honorable. 31.  On 2 October 2006, the applicant was counseled by the Chief, ARNG Enlisted Advisor.  She was informed that her involuntary released from active duty was approved with her service characterized as honorable and that she would be informed of the effective date. 32.  On that same day, the Commander, 3rd Army, prepared a memorandum for the Staff Management, Subject:  Use or Lose Leave.  He requested that the applicant not be penalized and lose leave in excess of 60 days and that she be allowed to carry the excess days to separation.  Due to operational requirements, the applicant was unable to use the leave in excess of 60 days.  She was mission essential; involved in deployment operations, exercises, and daily operations.  She currently had a total of 89.5 days of accrued leave. 33.  On 2 October 2006, Orders Number 275-5 were published by the NGB for the applicant with a reporting date to the transition point of no later than 29 November 2006, with an effective date of separation of 30 November 2006.  These orders indicated that she was entitled to full separation pay and that she would be returned to the control of the Joint Force Headquarters, LAARNG. 34.  The applicant's request contains a copy of a DA Form 31 (Request and Authority for Leave) for a 60 day transition leave from 2 October to 30 November 2006.  Her request also contains a copy of a DA 31 for convalescent Leave (CLV) from 26 November to 6 December 2006. 35.  The applicant provided a copy of a printout from the Surgery Coordinator, of the Women’s Health Specialists Clinic, at Eagles Landing, in Stockbridge, Georgia. The coordinator indicated that the applicant was scheduled for a pre-operation appointment on 12 October 2006, a pre-assessment appointment on 17 October 2006, and indicated that her surgery was scheduled for 24 October 2006. 36.  On 29 November 2006, the applicant's separation orders were amended to show that she was not entitled to separation pay. 37.  The applicant was honorably released from active duty from the LAARNG on 30 November 2006, under the provisions of Army Regulation 635-200, paragraph 5-3, due to Secretarial Authority, in the rank of SFC.  Her DD Form 214, dated 30 November 2006, shows she completed 19 years, 11 months, and 1 day of AFS. 38.  On 30 November 2006, an automated Service Computation for Separation (DA Form 7301-R) was prepared which shows that the applicant had completed 19 years, 11 months, and 1 day of AFS and 19 years, 11 months, and 27 days of total service for basic pay purposes. 39.  The applicant provided a copy of her September and November 2006 Leave and Earning Statement (LES).  Her November 2006 LES shows that she lost 29 days leave. 40.  In the processing of this case, an advisory opinion was requested of the Chief, Personnel Division, NGB. 41.  An opinion was provided on 14 December 2006.  The NGB reiterated the applicant's request and previous discussion of her case. The NGB recommended disapproval of the applicant's request, due to all procedures were followed in accordance with Army Regulation 635-200 and National Guard Regulation 600-200. Also the applicant, as a senior Noncommissioned Officer, knew of the serious offenses concerning drug and alcohol abuse, and knew to abide by Army Regulation 600-200. 42. The opinion concluded that the LAARNG followed all the proper procedures established in accordance with Army Regulation 635-200 and National Guard Regulation 600-200, for the involuntary separation of enlisted Soldiers with 18 years or more of qualifying service for retirement. 43.  The applicant was provided a copy of this opinion for possible comment prior to consideration of her case. 44.  In her rebuttal, the applicant requested that the Advisory Board reconsider its recommendation with full awareness and consideration of her total career to retire from the US Army after completing 19 years, 11 months, and 1 day of honorable AFS.  She acknowledged that the NGB had followed all procedures in accordance with Army Regulation 635-200 and NGB 600-200 for administration separation.  She does not condone the activities for which she was convicted for, nor does she place blame or find fault in the proceedings or procedures.  At no time has she denied the fact that she wrongfully used marijuana in March 2005; however, as stated in official testimony, because of mitigating circumstances, she had never knowingly consumed marijuana at any time during her military career.  The incident that occurred in March 2005 was simply an accident.  With 19 years of faithful service and never receiving a positive urinalysis, until this accident resulting in a positive THC level of 17 nanograms from marijuana, she does not believe that the charges she was convicted of warranted the harsh unfavorable actions taken against her. 45. She states that it was her very strong opinion that the unfavorable decision from the Army Board of Military Corrections and the NGB staff members were unduly influenced and even coerced by the recommendation of the CG, 3rd Army.  In the memorandum, dated 4 January 2006, to the AG, LAARNG, stated in paragraph 3, "If I had the authority, I would separate the applicant from the Army with a general discharge; however, since she had over 18 years of service, she must forward her administrative separation file to the separation authority at DA." Additionally, he stated that "he was confident that, once DA had reviewed the file, they would also conclude that the applicant did not belong in their Army." The CG also planted a seed of misconduct to the board by wrongfully highlighting an incident that she was involved in on 19 December 1997, which had nothing to do with the issue upon which she was addressing the board. In the memorandum, dated 4 January 2006, to DA, the CG, recommended that she receive a general discharge.  This statement further discredited her, as well as the panel of commissioned officers that recommended an honorable discharge. 46.  She states that in her case an unfavorable opinion was made or judged by general staffed commissioned officers who had never worked with her as a leader nor did they have any knowledge of her existence until separation procedures were processed through their section for approval.  After reviewing her transcripts from the administrative separation board, conducted on 15 November 2005, it was extremely clear that the personnel she either worked for or directly with, along with other senior staff members, wanted to speak on her behalf as character witness while serving under them as a leader, recommended she be retained for a 20 year retirement. 47.  She states that as you were well aware, she served faithfully for 19 years, 11 months, and 1 day.  On 30 October 2006, she had 29 days of earned leave taken away, which left her career 29 days short of retirement eligibility.  She humbly requested reconsideration of separation actions taken against her.   She believed that the 29 days of leave taken from her was unjust; and it would have a far reaching negative effect on her as well as her family.  By regulation, she says she must wait an additional 17 years until she reaches age 60 to apply for retirement benefits that she strongly felt that she had already earned, characterized by well over 19 years of loyal service to our great nation; in both peace and wartime operations.  She would not further dispute the allegations before her, but offered her distinguished career as a means to justify her eligibly for retirement. 48. On 13 February 2007, the applicant provided an additional statement, after submission of her request. She elaborated on previously discussed issues. She states that she was authorized 6 weeks convalescence leave that ended on 6 December 2006 and that a verbal request was made to her by the NGB, staff management, to be extended on active duty until her recovery. She was verbally denied an extension by the NGB stating that they could not allow her the time because it would take her over 20 years active duty and she would be separated prior to reaching that date. She was told that if she had medical conditions that were still pending, that she would have to utilize the VA (Veterans Administration) because she was receiving an honorable discharge with full separation pay. 49. She also states that on 2 October 2006 she was authorized to take 60 days leave but her clearing, surgery, and CLV would all have to be completed during the 60 days authorized. After losing 29 days leave on 30 October 2006, having surgery with 6 weeks authorized by her local command, at 3rd Army, and having to out-process on 30 November 2006, she was forced to cash in 42 days leave, which was the only pay she received after her separation. She humbly requests that she be placed on the 20 year active duty Retirement List effective 1 February 2007. She strongly feel that she has earned her retirement effective 1 February 2007, instead of waiting 17 years until she reaches age 60, for a non-regular retirement. 50.  The applicant's Summary of Retirement Points, dated 13 February 2007, shows she completed 20 years of qualifying service for retirement purposes. 51. On 13 February 2007, the LAARNG prepared another Service for Computation for Retirement (DA Form 7301-R) which shows that she completed 19 years, 11 months, and 1 day of AFS and completed 20 years and 27 days of service for basic pay purposes. 52. 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, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. 53. Paragraph 14-12c(2) provides for the separation of Soldiers for commission of a serious offense such as the abuse of illegal drugs.  Individuals identified as drug abusers may be separated prior to their normal expiration of term of service (ETS).  Individuals in pay grades E-5 and above must be processed for separation upon discovery of a drug offense.  54. Paragraph 5-3 states that separation under this paragraph is the prerogative of the Secretary of the Army.  Secretarial plenary separation authority is exercised sparingly and seldom delegated.  It is used when no other provision of this regulation applies, and early separation is clearly in the best interest of the Army. Separation under this paragraph are effective if approved in writing by the Secretary of the Army or the Secretary's approved designee as announced in updated memorandums.  The discharge or release of any enlisted member of the Army for the convenience of the government will be at the Secretary's discretion. 55.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 12 of that regulation sets policies and procedures for voluntary retirement of Soldiers because of length of service.  56.  Paragraph 12-3 pertains to general provisions of laws governing retirement.  It states, in pertinent part, that years of service for retirement are computed by adding all AFS in the Armed Forces and service computed under Title 10, United States (US) Code, Section 3925.  For Regular Army, ARNGUS, and USAR Soldiers retiring from an AD status, the date of retirement is the first day of the month in which the Soldier is released from AD.  For ARNGUS and USAR Soldiers not on AD, the date of retirement is the first day of the month following the month in which retirement orders are issued. 57.  Paragraph 12-4, implements Title 10, United States (US) Code, section 3914 which governs 20-year retirement by a Soldier of the Regular Army, the Army National Guard of the United States and the U.S. Army Reserve.  In pertinent part, the regulation provides that a request for retirement may be submitted by a Soldier who has completed 20 years, but less than 30 years, of AFS in the U.S. Armed Forces.  Approval of the request for retirement will be at the discretion of the Secretary of the Army. 58. In October 1999, guidance put out by the Under Secretary of Defense provided that former members of the Reserve Components are entitled to certain benefits. DISCUSSION AND CONCLUSIONS: 1. The applicant tested positive for marijuana, during a random unit-wide urinalysis and was punished under Article 15, UCMJ, for her misconduct. At that time, she had completed over 19 years and 7 months of AFS. 2. She was informed by her commander that action was initiated to separate her from the service, under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12. Her commander recommended that she be retained and allowed to fulfill her MSO. She was informed that the intermediate commanders and separation authority were not bound by their recommendations. 3. The applicant in her acknowledgement requests that she be retained on active duty for retirement to serve out her MSO of 24 years or 20 years AFS, which would be completed on 31 January 2007. 4. The commander submitted his recommendation to separate the applicant prior to her expiration of term of her current term of service. She consulted with counsel and requested consideration of her case by a board of officer, and requested representation by counsel. The SJA also recommended that she also appear before an administrative separation board to determine whether she should be separated for misconduct. 5. The applicant appeared before an administrative separation board. Two of the board members recommended that she be honorably separated and the other board member recommended that she be retained. 6. ASA/MRA approved the applicant’s involuntary separation and directed that she be discharged and the NGB informed her that her service would be characterized as honorable. 7. The applicant was advised of the proceedings and completed an application for voluntary retirement, with a desired effective date of 1 February 2007. She also requested voluntary retirement and 89.5 days of transition leave. Her commander recommended approval. 8. The applicant was scheduled for surgery, with 6 weeks recovery, and a verbal request was made to the NGB to be extended on active duty until her recovery. She was denied an extension because it would take her over 20 years AFS. She was informed that she would be separated prior to that date and that she could utilized the VA and receive her medical treatment in view of the fact she was being honorably discharged. 9. The applicant's Service Computation for Retirement shows she completed 19 years, 11 months, and 1 day AFS of total service and 19 years, 11 months, and 27 days of total service for basic pay purposes. Therefore, she is not entitled to correction of her records to show that he completed 20 years of AFS for an active duty retirement. 10. It is noted that the applicant was discharged for cause. She was aware of the Army's Drug abuse policy as a noncommissioned officer and consequences regarding her misconduct of this nature. She was experience enough to know right from wrong, and she knew or should have known, that her acts of misconduct were not condoned by the Army. She also knew, or should have known, the Army policy pertinent to the mandatory submission of a discharge action for NCOs in pay grade E-5 and above who used illegal drugs. 11. The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors, which would tend to jeopardize her rights. The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case. She has provided no evidence to show that her release from active duty was unjust or in error. 12. The Under Secretary's memorandum and attachment are provided to the applicant so she may utilize those administrative remedies to obtain the documents needed to authorize her the benefits to which she is entitled. BOARD VOTE: ________  ________  ________  GRANT FULL RELIEF ________  ________  ________  GRANT PARTIAL RELIEF ________  ________  ________  GRANT FORMAL HEARING __BJE___  __QAS__  __FCJ___  DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. ______Barbara J. Ellis________           CHAIRPERSON INDEX CASE ID AR20060015019 SUFFIX RECON YYYYMMDD DATE BOARDED 20070619 TYPE OF DISCHARGE HD DATE OF DISCHARGE 20061130 DISCHARGE AUTHORITY AR 635-200, chap 14 DISCHARGE REASON BOARD DECISION DENY REVIEW AUTHORITY ISSUES         1. 136.0000 2. 3. 4. 5.