IN THE CASE OF: BOARD DATE: 8 December 2016 DOCKET NUMBER: AR20160006777 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x___ ____x ___ ____x___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 8 December 2016 DOCKET NUMBER: AR20160006777 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 to amend the decisions of the ABCMR set forth in Docket Number AR20100014481, dated 13 January 2011. _____________x____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. IN THE CASE OF: BOARD DATE: 8 December 2016 DOCKET NUMBER: AR20160006777 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests reconsideration of her previous request for an upgrade of her general discharge under honorable conditions to honorable and amendment of her reentry eligibility (RE) code through a remand from the U.S. District Court for the Northern District of Illinois Eastern Division. 2. The applicant defers to counsel for statements and evidence. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests an upgrade of the applicant's discharge under honorable conditions (general) to honorable, amendment of her RE code, and correction of her records, including but not limited to her DD Form 214 (Certificate of Release or Discharge from Active Duty). 2. Counsel states: a. The applicant enlisted in the U.S. Army during a time of war. Her service to her country included a 6-month deployment to Iraq and she received several honors and medals in connection with her service. Her military career was derailed by the fallout from an abusive marriage. She was administratively separated under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, for commission of a serious offense (drug abuse) after one bad decision to cope with the stress of her abusive marriage by smoking marijuana. She received a discharge under honorable conditions and was assigned an RE code of 4, indicating an ineligibility for reenlistment. b. After her deployment to Iraq, she returned to Fort Hood. On 15 November 2007, she married her husband and a series of domestic violence incidents began. On 22 April 2008, her husband was charged with criminal assault for two altercations with her. After a superseding charging document dropped some charges, her husband pled guilty to two counts of assault and was sentenced to 3 days in prison and 1 year of probation. She began to suffer from severe anxiety and depression from the stress of her abusive marriage. On 5 May 2008, she tested positive for marijuana in a routine urinalysis. The physical abuse continued after the positive drug test. On 18 May 2008, her husband punched her in the face while she was driving. She pulled the car over and attempted to run, but her husband caught her and beat her. She returned to the car with her husband and laid down in the back seat. When they arrived on post, her husband climbed into the back seat and raped her. She feared she would be separated if she reported the rape to her unit, given her recent positive urinalysis. She attempted to report the rape to the Fort Hood police, but they discouraged her from filing a report. She then called the Killeen, TX, police to file a report, but she was told it was not rape because her husband was the offender. She finally filed a confidential report with III Corps, knowing her unit would not be notified. c. Following the urinalysis, she enrolled in the Army Substance Abuse Program (ASAP). She successfully completed the 2-day classroom program on 9 and 10 July 2008. She took additional steps to rehabilitate herself and maintain a sober and violence-free lifestyle, including marital counseling, domestic violence group counseling, and enrollment in Alcoholics Anonymous as she better identified with that program's stories than those of Narcotics Anonymous. Most importantly, she acknowledged that she allowed her marital problems to jeopardize her military career and pledged to change if given a second chance by the Army. d. On 11 July 2008, her battalion commander initiated proceedings against her under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for her use of marijuana and the domestic violence incidents. Nonjudicial punishment was imposed against her on 14 July 2008. She did not appeal the punishment. e. On 2 July 2008 (should read 2 August 2008), her company commander advised her that she would be initiating separation action against her under the provisions of Army Regulation 635-200, paragraph 14-12c, for commission of a serious offense (misconduct – abuse of illegal drugs). The company commander cited the reason as "Soldier received a Field Grade Article 15 on 14 July 2008, and were [sic] found guilty of wrongful use of Marijuana." Part J of the Commanding Officer's Report stated, "Description of rehabilitative attempts, if applicable: Soldier was enrolled in the ASAP program and completed the program on 10 July 2008." Part O of the Commanding Officer's Report stated, "Statement why the commander does not consider it feasible or appropriate to accomplish other disposition: Soldier has tested positive for illegal substance which is not compatible with continued military service." f. On 8 August 2008, her battalion commander recommended her administrative separation with her service characterized as "General under Honorable Conditions." On 14 August 2008, her brigade commander directed her administrative separation with her service characterized as "General under Honorable Conditions." On 28 August 2008, she was discharged under honorable conditions (general) and assigned a separation code of JKK (drug abuse) and an RE code of 4 (ineligible for reenlistment). g. On 27 April 2010, she petitioned the Army Discharge Review Board (ADRB) for an upgrade of her discharge to honorable and amendment of her RE code. She further requested correction of her DD Form 214 to show all her authorized awards. On 29 June 2010, the ADRB denied her request for a change in the character of her service and/or reason for discharge. h. She then applied to the Army Board for Correction of Military Records (ABCMR) for a discharge upgrade, amendment of her RE code, and correction of her DD Form 214 to show her service in Iraq and her service medals and awards. On 13 January 2011, the ABCMR recommended correction of her DD Form 214 to include the omitted medals and service in Iraq, but denied her requests for a discharge upgrade and amendment of her RE code. The ABCMR cited the regulatory policies under the provisions of Army Regulation 635-200, chapter 14; specifically, "Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed." The ABCMR further stated, "There is no available record of in-service training courses or substance abuse rehabilitation efforts." The ABCMR then concluded her separation "was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized her rights. The type of discharge directed and the reason therefore [sic] were appropriate considering all the facts of the case." The ABCMR further bolstered its conclusion by commenting that "[w]hile the use of the marijuana was the only offense for which she was punished, this was clearly not her only misconduct. Her husband's alleged bad behavior is not justification for her own domestic violence." i. On 7 June 2013, she sought reconsideration of the ABCMR decision. On 6 August 2013, the ABCMR denied her request for reconsideration, citing Army Regulation 15-185 (Army Board for Correction of Military Records), paragraph  2-15b, which requires submission of requests for reconsideration within 1 year of the original ABCMR decision. j. On 1 October 2015 with the assistance of counsel, she filed suit in the U.S. District Court for the Northern District of Illinois Eastern Division, seeking judicial review of the Board's decision to refuse her request for a discharge upgrade as well as its refusal to consider her motion for reconsideration. The lawsuit was resolved by a joint motion to remand the case to the Board with the agreement that she could submit any evidence and the Board would consider her arguments on the merits and would not enforce statutes of limitations or regulation against her. k. Her discharge characterization has made pursuit of education effectively impossible. Only veterans with an honorable character of service are eligible for GI Bill educational benefits. Moreover, the $1,200.00 she contributed to the GI Bill for educational purposes is nonrefundable. l. Her discharge characterization has made pursuit of employment in military logistics and supply impossible as well. In June 2010, she was hired as an inventory management specialist and she returned to Iraq and Afghanistan, working in equipment logistics. In January 2012, she was assigned to a sub-contractor working at Fort Hood, but she was barred from post due to her assigned RE code. She lost her job as a result and her former employer will not rehire her because of her RE code. m. She is the primary caregiver for her young son and struggles to provide for him because of these difficulties. She and her son live in subsidized housing and she struggles to afford the costs of daily living. n. The Army erred by administratively separating the applicant for wrongful use of marijuana without first complying with rehabilitation regulations. An error was made when the Army separated the applicant for the wrongful use of marijuana under the provisions of Army Regulation 635-200, chapter 14 (Separation for Misconduct), without following the regulatory guidance for rehabilitation of military personnel. In so doing, the Army ignored one of the two "overarching tenets" of the ASAP – treatment – which is achieved in part through rehabilitation. (1) There are two binding regulations relevant to the topic of personnel rehabilitation that the Army was obliged to follow when separating the applicant. The Army did not comply with either regulation. (a) First, the applicant was separated pursuant to paragraph 14-12c. Chapter 14 states action will be taken to separate a Soldier for misconduct when it is clearly established that: * despite attempts to rehabilitate or develop him/her as a satisfactory Soldier, further effort is unlikely to succeed * rehabilitation is impracticable or the Soldier is not amenable to rehabilitation (as indicated by the medical or personal history record) (b) Second, chapter 1 (General Provisions) adds a requirement regarding rehabilitation, stating, "[u]nless separation is mandatory, the potential for rehabilitation and further useful military service will be considered by the separation authority…" Separation for drug use is not mandatory as the separation authority may disapprove a recommendation for separation in accordance with paragraphs 14-17a-c. It follows that the separation authority will consider "potential for rehabilitation and further useful military service" in a case involving illegal drug use. (2) The Army erred by failing to consider either rehabilitation efforts by the applicant or the potential for her rehabilitation. Notwithstanding the official requirements regarding rehabilitation, the administrative record lacks any evidence the Army followed these regulations. (a) There is no evidence in the record to show the Army "clearly established" that efforts at rehabilitation were unlikely to succeed or that rehabilitation was impracticable. The Army did enroll the applicant in the ASAP, which she completed on 10 July 2008. Simply enrolling a Soldier in the program without more does not "clearly establish" that efforts at rehabilitation were unlikely to succeed or that rehabilitation was impracticable. (b) The timing of events makes apparent the decision to separate the applicant for misconduct occurred before she entered or completed the program, and thus before it could have been "clearly established" that efforts at rehabilitation were unlikely to succeed, contrary to paragraph 14-2a(1). For example, the same document that advised the applicant about the positive urinalysis results advised her that she should attend the ASAP and that "separation paperwork will be initiated." This was nearly 2 months before she entered the program. In another example, her company commander ordered her enrollment in the ASAP and advised her that she would be initiating both separation proceedings and proceedings under the provisions of Article 15 of the UCMJ. The document was dated more than 1 week before she entered the ASAP. The decision makers would not have started the separation process until after she completed the ASAP if they wanted to determine how she responded to rehabilitation efforts. (c) The separation decision was made without waiting to clearly establish whether rehabilitation efforts were likely to be successful; all of the medical evaluations necessary to administratively discharge her were ordered and completed before she began the ASAP. She was ordered to participate in a "pre-separation physical to facilitate removal from the service" on 11 June 2008. A Report of Mental Status Evaluation was completed on 17 June 2008 and a Report of Medical Examination form was completed on 2 July 2008 for the purpose of "separation." All three documents predate her completion of the ASAP. Nor was it clearly established via medical records that rehabilitation was impracticable or that she was not amenable to rehabilitation as required by regulation. The Army perfunctorily sent her to a drug abuse program and initiated separation proceedings at the same time. Such actions violate the letter and spirit of the requirement that the Army "clearly establish" that efforts at rehabilitation were unlikely to succeed or that rehabilitation was impracticable. (d) There is nothing in the record to show the Army complied with the requirement in Army Regulation 635-200, paragraph 1-15a, that "the potential for rehabilitation and further useful military service will be considered by the separation authority." The Commanding Officer's Report stated she did "not consider it feasible or appropriate to accomplish other disposition" than separation because "Soldier tested positive for illegal substance which is not compatible with continued military service." That is a legally insufficient ground on which to discharge a Soldier under paragraph 1-15a because it fails to even consider rehabilitation. This "zero tolerance" approach is in direct contravention to one of the two "overarching tenets" of the ASAP – treatment – which is achieved in part through rehabilitation. (e) It appears that no decision maker ever considered the efforts she made on her own initiative to rehabilitate herself in addition to completing ASAP. The separation paperwork makes no mention of her participation in marital counseling, attendance at domestic violence group therapy, treatment for depression, or voluntary enrollment in and attendance at Alcoholics Anonymous meetings. n. The ABCMR erred in originally determining the applicant's separation complied with Army regulations. There is no support in the administrative record for the conclusion that the Army complied with regulations at issue regarding rehabilitation. (1) The conclusion is inconsistent with the Board's recitation of the applicant's records. The Board commented earlier that there was "no available record of…substance abuse rehabilitation efforts." This acknowledgement alone should have led to the conclusion that the Army failed to comply with Army Regulation 635-200. The Board inappropriately relied on the domestic violence between the applicant and her then-husband to support its conclusion that she was treated appropriately. The Board bolstered its conclusion that her discharge was proper by commenting that "[w]hile the use of the marijuana was the only offense for which she was punished, this was clearly not her only misconduct. Her husband's alleged bad behavior is not justification for her own domestic violence." This logic is faulty for multiple reasons. First, it does not change the fact that the rehabilitation regulations were disregarded in error. Second, the applicant was separated for illegal drug use, not domestic violence. The Army did not think the episodes were serious enough to list them as a basis for separation, and the Board acted arbitrarily in using them to justify its conclusions. (2) Finally, the Board decision demonstrates a lack of compassion for the extent to which the applicant was a victim of domestic violence. Her then-husband pled guilty in Federal court to two counts of assault for domestic violence against the applicant and was sentenced to 3 days in prison and 1 year of probation. In another incident, multiple witnesses relayed that her husband slammed her to the ground and pinned her down. She was further victimized by her ex-husband when he raped her in May 2008, an abuse she was afraid to report to her unit lest it be used against her. She requests correction of this injustice given the extensive record of abuse she suffered at the hands of her ex-husband. o. Depriving the applicant of an honorable discharge is unjust. The applicant was pursuing her college education when she enlisted. The opportunity to have her education funded by the GI Bill contributed to her decision to enlist and she contributed a portion of her earnings each month, totaling $1,200.00, with the expectation that she would use her GI Bill benefits to complete her degree. Due to her discharge characterization, she is ineligible for GI Bill educational benefits and she forfeited her contribution. Not only have her discharge characterization and RE code denied her the opportunity to work in her chosen career, they also deny her the opportunity to retrain for another career. Without her college degree and with work experiences limited to a career she cannot pursue, she has been left with few employment options and relies on low-paying, unskilled positions and her limited veterans' benefits to support herself and her son. Failing to upgrade her discharge and continuing to deny her access to GI Bill educational benefits will result in continued poverty for her and her son. p. In conclusion, the applicant volunteered to serve her country during a time of war and received commendations for her service in Iraq in support of Operation Iraqi Freedom. She had an abusive marriage. The Army separated her for a single infraction instead of seeking to help her with the situation or attempting to rehabilitate her when separation was not mandatory. Her current service characterization and RE code are holding her back from moving on with her life and bettering herself through education and rewarding employment. 3. Counsel provides: * Exhibit 1 – DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552), dated 19 May 2016 * Exhibit 2 – DD Form 214 * Exhibit 3 – Declaration of (Applicant), dated 19 May 2016 * Exhibit 4 – DD Form 2366 (Montgomery GI Bill Act of 1984 – Basic Enrollment), dated 11 July 2005 * Exhibit 5 – DD Form 215 (Correction to DD Form 214), dated 17 February 2012 * Exhibit 6 – Army Commendation Medal Certificate, dated 12 July 2006 * Exhibit 7 – DD Form 215, dated 26 April 2011 * Exhibit 8 – Patient Care Form, dated 11 January 2008 * Exhibit 9 – DA Form 4856 (Developmental Counseling Form), dated 14 January 2008 * Exhibit 10 – three DA Forms 2823 (Sworn Statement), dated 16 April 2008 * Exhibit 11 – FHT Form 2827 (Investigator's Statement), dated 16 April 2008 * Exhibit 12 – DA Form 3975 (Military Police Report), dated 21 April 2008; DA Form 3975-1 (Military Police Report – Additional Offenses); and nine DA Forms 3975-4 (Military Police Report – Additional Persons Related to Report) * Exhibit 13 – DA Form 2627 (Record of Proceedings under Article 15, UCMJ), dated 14 July 2008 * Exhibit 14 – DA Form 4856, dated 5 May 2008 * Exhibit 15 – DA Form 2823, dated 19 April 2008 * Exhibit 16 – U.S. District Court Western District of Texas Waco Division Judgment and U.S. District Court Western District of Texas Waco Division Amended Judgement in a Criminal Case * Exhibit 17 – DA Form 4856, dated 15 May 2008 * Exhibit 18 – DD Form 2910 (Victim Reporting Preference Statement), dated 30 May 2008 * Exhibit 19 – Headquarters and Headquarters Company (Rear), Brigade Troops Battalion (Rear), memorandum, undated, subject: Separation under Army Regulation 635-200, Chapter 14-12c (should read Paragraph 14-12c), Commission of a Serious Offense (Misconduct – Abuse of Illegal Drugs) * Exhibit 20 – Standard Form 600 (Chronological Record of Medical Care), dated 28 July 2008 * Exhibit 21 – Standard Form 600, dated 17 June 2008 * Exhibit 22 – Headquarters and Headquarters Company, Brigade Troops Battalion, 4th Sustainment Brigade, 13th Sustainment Command (Expeditionary), memorandum, dated 8 August 2008, subject: Justification Letter for Retention * Exhibit 23 – DA Form 4856, dated 2 July 2008 * Exhibit 24 – Headquarters and Headquarters Company (Rear), Brigade Troops Battalion (Rear), memorandum, dated 7 August 2008, subject: Separation under Army Regulation 635-200, Chapter 14-12c (should read Paragraph 14-12c), Commission of a Serious Offense (Misconduct – Abuse of Illegal Drugs) * Exhibit 25 – Headquarters, Brigade Troops Battalion (Rear), memorandum, dated 8 August 2008, subject: Army Regulation 635-200, Chapter 14-12c (should read Paragraph 14-12c), Commission of a Serious Offense (Misconduct – Abuse of Illegal Drugs) * Exhibit 26 – Headquarters, 15th Sustainment Brigade, memorandum, dated 14 August 2008, subject: Army Regulation 635-200, Chapter  14-12c (should read Paragraph 14-12c), Commission of a Serious Offense (Misconduct – Abuse of Illegal Drugs) * Exhibit 27 – DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552), dated 27 April 2010 * Exhibit 28 – Army Discharge Review Board letter, dated 29 June 2010 * Exhibit 29 – two ABCMR letters, dated 19 January 2011, and ABCMR Record of Proceedings Docket Number AR201000014481, dated 13 January 2011 * Exhibit 30 – two ABCMR letters, dated 5 December 2011, and ABCMR Record of Proceedings Docket Number AR20110009264, dated 1 December 2011 * Exhibit 31 – DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 7 June 2013, and self-authored letter, dated 6 June 2013 * Exhibit 32 – ABCMR letter, dated 6 August 2013 * Exhibit 33 – U.S. District Court for the Northern District of Illinois Eastern Division order, dated 29 March 2016 * Exhibit 34 – Rear Detachment, Brigade Troops Battalion, memorandum for record, dated 11 June 2008 * Exhibit 35 – U.S. Army Medical Command Form 699-R (Report of Mental Status Evaluation), dated 17 June 2008 * Exhibit 36 – DD Form 2808 (Report of Medical Examination), dated 2 July 2008 CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20100014481 on 13 January 2011. 2. The applicant enlisted in the Regular Army on 6 July 2005. She completed training and she was awarded military occupational specialty 92Y (Unit Supply Specialist). She was assigned to Fort Hood, TX, for duty. 3. Her records show she served in Kuwait/Iraq from 14 February 2006 through 9 September 2006. 4. Headquarters, 4th Sustainment Brigade, Permanent Order Number 193-135, dated 12 July 2006, awarded her the Army Commendation Medal for exceptionally meritorious service during Operation Iraqi Freedom from 14 February 2006 to 7 September 2006. 5. Counsel provided a Patient Care Form, dated 11 January 2008, showing the applicant refused treatment following a domestic dispute with her husband wherein her husband drove a vehicle toward her, slammed on the brakes, then rolled the vehicle into her traveling at a rate of less than 1 mile per hour. She denied any trauma. 6. Her records contain a DA Form 4856, dated 14 January 2008, showing she was counseled in writing for failing to make the accountability formation and failing to comply with the no-contact order. The no-contact order was given due to a physical altercation with her husband on 11 January 2008. She violated the order by returning to her residence prior to the end of the 72-hour period. She was advised that continued behavior of the same or similar nature could result in elimination action against her. Such action could result in the possible loss of some or all veterans' benefits, substantial prejudice in obtaining civilian employment, and ineligibility for educational benefits under the Montgomery GI Bill. 7. Counsel provided a DA Form 3975, dated 21 April 2008, showing a criminal complaint of assault was filed against the applicant by her husband following a domestic disturbance. The military police investigation disclosed the applicant was responsible for the offense. 8. Counsel provided a U.S. District Court Western District of Texas Waco Division Judgment, dated 22 April 2008, showing the applicant's husband was found guilty of four counts of assault by striking, beating, or wounding the applicant on or about 31 January 2008 and one count of willfully damaging government property. 9. Her records contain a DA Form 4856, dated 5 May 2008, showing she was counseled by her platoon sergeant for disobeying a lawful order by having a physical altercation with her husband while being escorted to her residence to retrieve her personal belongings. Her platoon sergeant advised her that he was recommending nonjudicial punishment against her under the provisions of Article 15 of the UCMJ and a bar to reenlistment might be initiated against her. She was further advised that continued behavior of the same or similar nature could result in elimination action against her. Such action could result in the possible loss of some or all veterans' benefits, substantial prejudice in obtaining civilian employment, and ineligibility for educational benefits under the Montgomery GI Bill. 10. Her records contain a DA Form 4856, dated 5 May 2008, showing she was counseled in writing by her supervisor for failing to comply with urinalysis testing. She claimed she did not have her military identification card with her. Her supervisor stated she asked her if she was going to test positive and she replied that she might. The first sergeant later advised her supervisor that she did not report for testing. Her supervisor advised her that this type of behavior would not be tolerated. She was further advised that involuntary separation could result in the possible loss of most veterans' benefits, ineligibility for educational benefits under the Montgomery GI Bill, and difficulty obtaining civilian employment. 11. Counsel provided a DA Form 4856, dated 15 May 2008, showing the applicant's first sergeant counseled her in writing for testing positive for marijuana. Her first sergeant recommended nonjudicial punishment against her under the provisions of Article 15 of the UCMJ. She was advised that continued behavior of the same or similar nature could result in elimination action against her. She was further advised that continued behavior of the same or similar nature could result in the possible loss of some or all veterans' benefits, substantial prejudice in obtaining civilian employment, and ineligibility for educational benefits under the Montgomery GI Bill. 12. Counsel provided a DD Form 2910, dated 30 May 2008, showing the applicant filed a restricted report that she was a victim of sexual assault. She acknowledged that her command would not be provided with information about her identity, law enforcement or other military authorities would not be notified, and the information provided would not start an investigation or be used to punish the offender. 13. Counsel provided a Standard Form 600, dated 17 June 2008, showing the applicant underwent a psychological medical separation examination. Her medical history notes she stated she drinks and partakes of marijuana for self-medication. 14. Her records contain and counsel provided a DA Form 4856, dated 2 July 2008, showing her company commander counseled her in writing for misconduct due to positive urinalysis results. Her company commander noted a random urinalysis conducted on 5 May 2008 indicated she tested positive for marijuana, a controlled substance. She was advised that use of illegal drugs was a violation of Article 112a of the UCMJ and is not in keeping with the conduct expected of Soldiers. This flagrant disregard for military duty and regulations caused her company commander to have grave doubts about her professionalism, motivation, and maturity. She was advised that this type of conduct may have severe consequences on her continued military career, seriously impact her ability to maintain a security clearance, and is not compatible with military service as stated in Army Regulation 635-200 and Army Regulation 600-85 (The Army Substance Abuse Program). Her commander informed her that she was recommending UCMJ action and would be initiating separation action in accordance with Army Regulation 600-85 and Army Regulation 635-200. She was advised that she would be given a reasonable period to correct these deficiencies and to rehabilitate herself to meet acceptable standards of conduct and duty performance. Continued unsatisfactory conduct/duty performance would result in her involuntary separation under the provisions of Army Regulation 635-200. She was advised that a general discharge could result in ineligibility for some veterans' benefits, difficulty in obtaining preferred civilian employment, and ineligibility for educational benefits under the Montgomery GI Bill. Her company commander directed her enrollment in the ASAP. 15. Her records contain a DA Form 2627, dated 14 July 2008, showing nonjudicial punishment was imposed against her for wrongfully using marijuana, a controlled substance, between 6 April 2008 and 5 May 2008; unlawfully striking her husband in the face on or about 17 April 2008; and unlawfully assaulting her husband on or about 17 April 2008. 16. Headquarters and Headquarters Company (Rear), Brigade Troops Battalion (Rear), memorandum, undated, subject: Separation under Army Regulation  635-200, Chapter 14-12c (sic), Commission of a Serious Offense (Misconduct – Abuse of Illegal Drugs), shows the applicant's company commander recommended her separation from the U.S. Army prior to her expiration term of service. Her company commander cited the following specific, factual reason for the separation action as the applicant's receipt of a field-grade Article 15 on 14 July 2008 for wrongful use of marijuana in violation of Article 112a of the UCMJ. She stated the applicant received counseling two times on 5 May for failing to obey an order or regulation and on 14 January for failing to report to accountability formation. She stated the applicant was enrolled in and completed the ASAP on 10 July 2008. 17. On 8 August 2008, she acknowledged she was advised by consulting counsel of the basis for the contemplated action to separate her under the provisions of Army Regulation 635-200, paragraph 14-12c, and its effect and the rights available to her. She waived consulting counsel. She further acknowledged that she could expect to encounter substantial prejudice in civilian life if she were issued a general discharge under honorable conditions. She understood she could be ineligible for many or all benefits as a veteran under both Federal and State laws. She understood she could apply to the ADRB or the ABCMR for an upgrade of her discharge; however, an act of consideration by either board did not imply that her discharge would be upgraded. 18. She submitted a memorandum for record, dated 8 August 2008, subject: Justification Letter for Retention, wherein she explained why she wished to be retained in the Army and why she acted and reacted the way she did. She described her relationship with her husband. She stated she believed the way she was raised had a lot to do with the poor decisions and judgment calls she made involving drug use to solve or cover up her emotional problems. She described the steps she had taken to ensure she would never be in a similar situation. She promised to work very hard to show she could be an outstanding Soldier. 19. Headquarters, Brigade Troops Battalion (Rear), memorandum, dated 8 August 2008, subject: Army Regulation 635-200, Chapter 14-12c (sic), Commission of a Serious Offense (Misconduct – Abuse of Illegal Drugs), shows the battalion commander recommended approval of her separation with characterization of her service as general under honorable conditions. 20. Headquarters, 15th Sustainment Brigade, memorandum, dated 14 August 2008, subject: Army Regulation 635-200, Chapter 14-12c (sic), Commission of a Serious Offense (Misconduct – Abuse of Illegal Drugs), shows the brigade commander approved her separation and directed characterization of her service as general under honorable conditions. 21. Headquarters, III Corps and Fort Hood, Orders 232-0101, dated 19 August 2008, reassigned her to the transition point and discharged her effective 28 August 2008. The authority is shown as Army Regulation 635-200. 22. She was discharged under honorable conditions (general) on 28 August 2008 by reason of misconduct (drug abuse) under the provisions of Army Regulation 635-200, paragraph 14-12c. Her DD Form 214 shows she was assigned separation program designator (SPD) code JKK and RE code 4. 23. Her records contain a DD Form 215, dated 26 April 2011, correcting her DD Form 214 for the period ending 28 August 2008 to show she was authorized award of the Iraq Campaign Medal with one bronze service star and the Global War on Terrorism Service Medal. 24. Her records contain a DD Form 215, dated 17 February 2012, correcting her DD Form 214 for the period ending 28 August 2008 to show: * she completed 6 months and 27 days of foreign service * she was awarded the Army Commendation Medal * her service in Kuwait/Iraq from 14 February 2006 through 9 September 2006 25. On 21 June 2010, the Army Discharge Review Board (ADRB) carefully examined her record of service and the issues she submitted and found no mitigating factors that would merit an upgrade of her discharge. The ADRB determined her discharge was both proper and equitable and denied relief. 26. On 13 January 2011, the ABCMR carefully considered her record of service as well as the explanation she offered for her use of illegal drugs. The ABCMR determined her administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized her rights. The ABCMR further determined the type of discharge directed and the reason were appropriate and denied her request for an upgrade of her discharge to honorable and amendment of her RE code. 27. On 5 September 2012, the ADRB denied her request for a personal appearance board, citing her prior denial in 2010 and her failure to appear for her scheduled personal appearance board on 28 August 2012. She was advised that she had exhausted her appeals with the ADRB. 28. On 6 August 2013, the ABCMR denied her request for reconsideration for an upgrade of her discharge to honorable, citing her failure to request reconsideration within 1 year of the ABCMR's original decision in accordance with Army Regulation 15-185, paragraph 2-15b. REFERENCES: 1. Army Regulation 600-85 prescribes policies and procedures to implement, administer, and evaluate the ASAP. a. Paragraph 1-31 states the ASAP is a command program that emphasizes readiness and personal responsibility. The ultimate decision regarding separation or retention of abusers is the responsibility of the Soldier's chain of command. The command role in the prevention, biochemical testing, early identification of problems, rehabilitation, and administrative or judicial actions is essential. Unit commanders retain their authority to make personnel decisions except that initiation of administrative separation is mandatory for all Soldiers identified as illegal drug abusers. b. Paragraph 1-35 states the following provisions underscore the Army's policy that drug abuse will not be tolerated and that there are serious consequences for such misbehavior. (1) All Soldiers who are identified as drug abusers, without exception, will: (a) be referred to the ASAP counseling center for screening. Nondependent drug users will be enrolled in the ASAP if such enrollment is clinically recommended and the unit commander concurs; (b) be considered for disciplinary action under the UCMJ, as appropriate; and (c) be processed for administrative separation in accordance with the appropriate enlisted or officer separation regulation with the exception of self-referrals. Administrative separation will be initiated and processed to the separation authority for decision on any Soldier with a positive drug test that could not have resulted from legitimate medical use of a drug. Processing will be initiated within 30 calendar days of receipt of a positive drug test report, or if the case requires Medical Review Officer review, within 30 calendar days of receipt of the Medical Review Officer-verified positive drug test report. In cases where the chain of command has referred the matter to a trial by court-martial, administrative separation proceedings will be delayed until completion of the court-martial process. (2) Discharge for misconduct under the appropriate enlisted or officer regulation will be initiated and processed to the separation authority for all Soldiers involved in illegal trafficking, distribution, possession, use, or sale of illegal drugs. Soldiers will also be considered for disciplinary action under the UCMJ and Rule for Courts-Martial 306, Manual for Courts-Martial. Initiation of administrative separation proceedings is not required in those instances where charges have been referred to a court-martial empowered to adjudge a punitive discharge, or when drug use is discovered through self-referral. c. Paragraph 3-2 states voluntary (self-identification) is the most desirable method of identifying alcohol or other drug abuse. The individual whose performance, social conduct, interpersonal relations, or health becomes impaired because of the abuse of alcohol or other drugs has the personal obligation to seek rehabilitation. d. Paragraph 6-3 states the objective of the "Limited Use Policy" is to facilitate the identification of alcohol and other drug abusers by encouraging identification through self-referral. In addition, the policy is designed to facilitate the treatment and rehabilitation of those abusers who demonstrate the potential for rehabilitation and retention. When applied properly, the "Limited Use Policy" does not conflict with the Army's mission or standards of discipline. It is not intended to protect a member who is attempting to avoid disciplinary or adverse administrative action. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 1 (General Provisions) provides that a substantial investment is made in training persons enlisted or inducted into the Army; therefore, this general guidance will be considered when initiating separation action. (1) Paragraph 1-15a states that unless separation is mandatory, the potential for rehabilitation and further useful military service will be considered by the separation authority; where applicable, the administrative separation board will also consider these factors. If separation is warranted despite the potential for rehabilitation, consider suspending the separation, if authorized. (2) Adequate counseling and rehabilitation measures will be taken before initiating separation action against a Soldier when the reason for separation so specifies. An alleged or established inadequacy in previous rehabilitation efforts does not provide a legal bar to separation. (3) When deciding retention or separation in a case, consider the following factors: (a) the seriousness of the events or conditions that form the basis for initiation of separation proceedings. Also consider the effect of the Soldier's continued retention on military discipline, good order, and morale; (b) the likelihood that the events or conditions that led to separation proceedings will continue or recur; (c) the likelihood that the Soldier will be a disruptive or undesirable influence in present or future duty assignments; (d) the Soldier's ability to perform duties effectively now and in the future, including potential for advancement or leadership; (e) the Soldier's rehabilitative potential; (f) the Soldier's entire military record, including past contributions to the Army, assignments, awards and decorations, evaluation ratings, and letters of commendation; memoranda of reprimand or admonition, counseling records, records of nonjudicial punishment, records of conviction by court-martial and records of involvement with civilian authorities; any other matter deemed relevant by the board or the separation authority, including specialized training, duties, and experience of persons entrusted by this regulation with making recommendations or decisions on separation or retention; and adverse information from a prior enlistment or period of military service only when such information would have a direct and strong probative value in determining whether separation is appropriate. b. Chapter 3 (Character of Service/Description of Separation) provides guidance for characterization of service at separation. (1) Paragraph 3-5a states characterization of service at separation will be based upon the quality of the Soldier's service, including the reason for separation. The quality of service will be determined according to standards of acceptable personal conduct and performance of duty for military personnel. The quality of service of a Soldier is affected adversely by conduct that is of a nature to bring discredit on the Army or is prejudicial to good order and discipline. Characterization may be based on conduct in the civilian community. As a general matter, characterization will be based upon a pattern of behavior other than an isolated incident. (2) Paragraph 3-7a states an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier'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. c. Chapter 14 (Separation for Misconduct) establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. (1) Paragraph 14-2, in effect at the time, stated action will be taken to separate a Soldier for misconduct when it is clearly established that: (a) despite attempts to rehabilitate or develop him/her as a satisfactory Soldier, further effort is unlikely to succeed or (b) rehabilitation is impracticable or the Soldier is not amenable to rehabilitation (as indicated by the medical or personal history record). (2) Paragraph 14-12a, in effect at the time, stated Soldiers are subject to separation action for a pattern of misconduct consisting solely of minor military disciplinary infractions. (3) Paragraph 14-12b, in effect at the time, stated Soldiers are subject to separation action for a pattern of misconduct consisting of: (a) discreditable involvement with civil or military authorities; or (b) discreditable conduct and conduct prejudicial to good order and discipline, including conduct violating the accepted standards of personal conduct found in the UCMJ, Army regulations, the civil law, and time-honored customs and traditions of the Army. (4) Paragraph 14-12c, in effect at the time, stated Soldiers are subject to separation action for the commission of a serious military or civil offense if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. Abuse of illegal drugs is serious misconduct; however, relevant facts may mitigate the nature of the offense. Therefore, a single drug abuse offense may be combined with one or more minor disciplinary infractions or incidents of other misconduct and processed for separation under paragraph (1) or (2), as appropriate. All Soldiers against whom charges will not be referred to a court-martial authorized to impose a punitive discharge or against whom separation action will not be initiated under the provisions of chapter 9 will be processed for separation. "Processed for separation" means that separation action will be initiated and processed through the chain of command to the separation authority for appropriate action. The immediate and intermediate commanders will recommend separation or retention. Recommendations will be made as to characterization of service. The separation reason in all separations authorized by this paragraph will be "misconduct – abuse of illegal drugs." Voluntary (self) identification/referral in accordance with Army Regulation 600-85, paragraph 3-2, does not require initiation of separation proceedings under this section. 3. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) governs eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard. Chapter 3 prescribes the basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes. * RE code 1 applies to persons who completed an initial term of active service who were fully qualified for enlistment when separated * RE code 3 applies to persons who are not qualified for reentry or continuous service at the time of separation, but the disqualification is waivable * RE code 4 applies to persons separated from their last period of service with a nonwaivable disqualification 4. The SPD/RE Code Cross-Reference Table shows the corresponding RE code for SPD code JKK is 4. 5. The Montgomery GI Bill is administered by the Department of Veterans Affairs and provides educational assistance to service members, veterans, and their dependents. The Department of Veterans Affairs Federal Benefits for Veterans provides that Department of Veterans Affairs educational benefits may be used while the service member is serving on active duty or after the service member's separation from active duty with a fully honorable military discharge. Discharges "under honorable conditions" and "general" discharges do not establish eligibility. DISCUSSION: 1. The evidence clearly shows the applicant was involved in a physically abusive relationship with her then-husband. She was counseled in writing in January 2008 for failing to report for the accountability formation and violating a command-imposed no-contact order between her and her then-husband. 2. A Military Police Report shows her then-husband filed a criminal complaint of assault against her in April 2008 and a military police investigation disclosed she was responsible. However, the following day the U.S. District Court Western District of Texas Waco Division found her then-husband guilty of four counts of assault by striking, beating, or wounding the applicant and one count of willfully damaging government property. 3. The evidence of record shows she was counseled in writing by her supervisor on 5 May 2008 for failing to comply with urinalysis testing. Later the same date, she tested positive for marijuana and her first sergeant recommended nonjudicial punishment against her under the provisions of Article 15 of the UCMJ. 4. On 30 May 2008, she filed a restricted report indicating she was a victim of sexual assault. She acknowledged that her command would not be provided with information about her identity, law enforcement or other military authorities would not be notified, and the information provided would not start an investigation or be used to punish the offender. 5. The evidence of record shows she was counseled in writing by her company commander in July 2008 for misconduct due to positive urinalysis results. Her company commander advised her that she was recommending nonjudicial punishment against her under the provisions of Article 15 of the UCMJ and initiating separation action against her in accordance with Army Regulation  635-200 and Army Regulation 600-85. Her company commander directed her enrollment in the ASAP. 6. The evidence of record shows she was command-referred to the ASAP in accordance with Army Regulation 600-85. The provision for retention on active duty under this regulatory authority applies to Soldiers who are self-referred for substance dependency prior to command intervention. 7. Her command initiated separation proceedings against her for misconduct (abuse of illegal drugs) in July 2008 in accordance with Army Regulation 600-85 and Army Regulation 635-200. 8. She was discharged accordingly on 28 August 2008 under the provisions of Army Regulation 635-200, paragraph 14-12c. Her DD Form 214 shows her service was characterized as under honorable conditions (general). She was assigned an SPD code of JKK and an RE code of 4. 9. Counsel contends the applicant was unjustly discharged and bases his argument on the Army's failure to allow her an opportunity for rehabilitation only as it applies to substance abuse. However, the Army's policies relating to rehabilitation have a much broader scope, including a Soldier's ability to master training and overall military bearing and conduct. The governing regulations clearly specify that all Soldiers who are identified as drug abusers, without exception, will be referred to the ASAP and processed for administrative separation. 10. Counsel asserts the applicant should receive an honorable discharge. An honorable discharge is a separation with honor. 11. The evidence in this case shows the applicant's service did not "generally [meet] the standards of acceptable conduct and performance of duty for Army personnel.” The applicant admits she received two disciplinary actions under Article 15 of the UCMJ in her 3-year Army career. One action under Article 15 was for wrongful use of a Schedule I controlled substance. Her records also indicate a pattern of disobedience and an inability to follow orders. 12. The applicant's difficult and tumultuous marriage is noted. She cites this as the reason for her use of illegal drugs. The evidence shows two incidents of aggression toward her by her spouse, to include civil charges, and one occasion of aggressive behavior by the applicant toward the spouse, in the presence of a noncommissioned officer. 13. The evidence shows she was counseled in writing on numerous occasions and advised that continued behavior of the same or similar nature could result in elimination action against her. She was also advised that such action could result in the possible loss of some or all veterans' benefits, substantial prejudice in obtaining civilian employment, and ineligibility for educational benefits under the Montgomery GI Bill. 14. The Board must ascertain how the applicant’s behavior would warrant an honorable characterization of service and whether there is evidence of error or injustice in relation to the applicant's discharge for misconduct for abuse of illegal drugs or assignment of RE code 4. The Board must determine if she has demonstrated, by a preponderance of evidence, that relief is warranted in this regard. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160006777 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160006777 19 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2