ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 20 March 2019 DOCKET NUMBER: AR20160012312 APPLICANT REQUESTS: * reconsideration of her previous request for – * reinstatement in the U.S. Army Reserve (USAR) Medical Service Corps with no loss of time * retroactive promotion to the rank of major/O-4 * retroactive wages and benefits * constructive service credit in the rank of major/O-4 from 2010 to present * removal of all derogatory letters, documents, or inferences from her Army Military Human Resource Record * personal appearance hearing APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Self-Authored Letter to the Army Board for Correction of Military Records (ABCMR), dated 24 June 2016, reference: ABCMR Docket Number AR20140019765 * Drug Testing Program Testing Register, dated 3 August 2008, with chain of custody * Photographs, Storage unit * Email, Lieutenant Colonel (LTC) A____, dated 18 July 2008 * Memorandum, Headquarters, 9th Mission Support Command, dated 14 August 2008, subject: Notification of Urinalysis Positive Result * Drug Testing Custody and Control Form, Diagnostic Labs, dated 16 August 2008 * Memorandum, Headquarters 9th Mission Support Command, dated 29 September 2008, subject: Show Cause Action for (Applicant), with approval memorandum * Memorandum, Headquarters 9th Mission Support Command, subject: Notification to Show Cause for Retention, with acknowledgement * Memorandum, Headquarters 9th Mission Support Command, dated 24 March 2009, subject: Referral of (Applicant) to Board of Inquiry * DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers), dated 2 May 2009 * Administrative Separation Proceedings, dated 2 May 2009 * Memorandum, 22nd Legal Support Organization, dated 7 May 2009, subject: Request to reconsider separation action against (Applicant) * Memorandum, Headquarters, 9th Mission Support Command, dated 15 June 2009, subject: Legal Review of Administrative Separation Action (Applicant) * three Memorandums, Headquarters 9th Mission Support Command, dated 14 July 2009, subject: Results of Separation Board Action (Applicant) * Memorandum, Headquarters, 8th Theater Sustainment Command, dated 30 November 2009, subject: Formal Recommendation Concerning Elimination of (Applicant) * Case Report and Directive, Army Discharge Review Board (ADRB), dated 7 January 2013 * Email, Ms. S____, dated 17 October 2013, subject: Request copy of Urine Analysis history * Case Report and Directive, ADRB, dated 22 September 2014 * Letter, ADRB, dated 25 September 2014 * Record of Proceedings, ABCMR, dated 24 September 2015 * Letter, ABCMR, dated 25 September 2015 * four Letters of Retention, LTC A____ * 18 Letters of References * nine DA Forms 67-9 (Officer Evaluation Report) for the periods 15 November 2001 through 26 June 2010 FACTS: 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 AR20140019765 on 24 September 2015. 2. The applicant provided no new documentary evidence. She argues the first issue as a review of propriety, stating the command followed its own rules and regulations in processing her discharge. She also argues the issue of equity, in which the ADRB believed her service characterization was inequitable. 3. The applicant states: * she was involuntary discharged based on misconduct * she believes errors both in propriety and equity resulted in her wrongful separation and an unjust characterization that is still preventing her from returning to military service * the original board hearing contained legal and procedural errors that severely prejudiced her right to a fair hearing and violated her due process * new evidence will be presented in this appeal * she believes her command, in their desire to expedite a quick discharge, used their discretionary powers to stage an administrative process that resulted in her wrongful discharge, they failed to remain fair and impartial in their findings and violated her rights * the retaliation by the Board of Inquiry (BOI) for not being flagged immediately after her incident, no adverse officer evaluation report (OER), no negative counseling statements, and having the full support of her commander and the next higher commander * the BOI failed to understand and follow the guidelines in Army Regulation 15-6 (Procedures for Investigating Officers and Board of Officers), Army Regulation 135-175 (Separations of Officers), Army Regulation 600-8-24 (Officer Transfers and Discharges), and Army Regulation 600-85 (Alcohol and Drug Abuse and Prevention and Control Program) * the BOI failed to properly weigh all discrepancies, beginning with the unit urinalysis collection, failure of the unit personnel to follow regulations, no preliminary investigation by the Staff Judge Advocate's investigating officer, and failure by the recorder to provide requested witnesses * the BOI failed to review the regulations, instead relying solely on the recorder to provide material evidence which was biased and prejudicial * impropriety occurred when policy, procedures, guidelines, and regulations in order to discharge an officer were not followed * required forms were not processed properly in the Record of Proceedings * gross negligence by the Staff Judge Advocate, the BOI, and her command existed * there was procedural safeguards and due process violations * the Command Staff Judge Advocate and the BOI erred in not following the procedures set forth in the appointment letter for a standing officer administrative board * the ABCMR relied on a false statement made by the Board analyst * material evidence is missing and/or incomplete, leading to prejudicial bias * according to regulation, each finding made by the BOI must be supporting by substantial evidence, which is defined as such evidence that reasonable minds can accept as adequate to support its conclusion * the basis of the finding and recommendation was disproportionately weighted toward the Government's evidence, the positive urinalysis sample itself, and the testimony of the subject matter expert 4. The applicant's record of misconduct is not available in the integrated Personnel Electronic Records Management System. The applicant provided evidence of her misconduct, administrative separation proceedings, and discharge documents. 5. On 14 August 2008, the applicant's detachment commander was notified in writing of her positive result from a urinalysis test. Her commander was instructed to initiate separation action and initiate a flag (suspension favorable action). 6. On 2 May 2009, administrative separation proceedings conducted by a Board of Officers found: * the allegations of personal misconduct – specifically, the use of marijuana by the applicant is supported by a preponderance of evidence * the allegations of conduct unbecoming of an officer – specifically, the use of marijuana by the applicant is supported by a preponderance of the evidence 7. The Board of Officers recommended the applicant separation from the service with a discharge under other than honorable conditions. 8. On 15 June 2009, a legal review determined the separation action met the requirements of Army Regulation 135-175 (Army National Guard and Army Reserve – Separation of Officers) and was legally sufficient. The following are the specific findings: * all proceedings complied with applicable legal requirements * no appointing or substantial error were present * sufficient evidence supported the Board's findings that the applicant used marijuana and engaged in conduct unbecoming an officer * the Board's recommendation to discharge the applicant from the U.S. Army Reserve (USAR) under other than honorable conditions was consistent with, and warranted by, its findings 9. On 30 November 2009, the Commanding General, Headquarters, 8th Theater Sustainment Command, recommended approval of the applicant's elimination and characterization of her service as under other honorable conditions. 10. On 1 December 2010, the applicant was discharged from the USAR under other than honorable conditions. 11. On 12 June 2012, the applicant applied to the ADRB and requested: * vacation of her discharge from the USAR * reinstatement in the USAR in the rank of captain and promotion to major * removal of the under other than honorable conditions characterization of service * removal of all service record entries related to her misconduct * restoration of all pay and allowances 12. On 7 January 2013 after carefully examining the applicant's record of service during the period under review and considering the analyst's recommendation and rationale, the ADRB determined the applicant's discharge was both proper and equitable and voted to deny relief. 13. The applicant applied to the ADRB again on 9 July 2014, stating her discharge was improper and inequitable. The entire case was based on an isolated incident discrediting over 19 years of faithful and honorable service. She requested an upgrade in her characterization of service to honorable and reinstatement in the USAR. 14. On 22 September 2014, the ADRB voted to grant full relief in the form of an upgrade of the characterization of her service to honorable and a change to the narrative reason for separation to Secretarial Authority. The Board found the circumstances surrounding her discharge that included conduct of the urinalysis test, no action taken under the Uniform Code of Military Justice, no officer evaluation report to document derogatory information, and the conduct of the BOI, all mitigated the discrediting entry in her service record. The ADRB determined her service characterization was too harsh based on her service record. 15. On 10 November 2014, the U.S. Army Human Resources Command published new discharge orders showing her type of discharge as honorable. 16. The applicant applied to the ABCMR on 7 November 2014 and requested reinstatement in the USAR and retroactive promotion to major/O-4 with a date of rank of March 2010. She also requested expunction of all references to misconduct from her OMPF and reinstatement of her security clearance. 17. On 24 September 2015, the ABCMR denied the applicant's request for reinstatement in the USAR Medical Service Corps, assignment to her previous command, retroactive promotion to major/O-4 with a date of rank of 10 April 2010, deletion of the flagging action from her OMPF, and reinstatement of her security clearance. The Board determined the evidence presented did not demonstrate the existence of a probable error or injustice. The applicant had a suspension of favorable actions at the time of the release of the Fiscal Year 2010 Major Army Medical Department Promotion Board results. By regulation, an officer removed from an active status before promotion is final will be removed from the promotion list. If returned to an active status, the officer will not be considered for promotion until at least 1 year after the date of return to an active status. 18. She provided four memorandums/ from LTC A____ letters recommending her retention, 18 character-reference letters, and nine officer evaluation reports covering the periods 15 November 2001 through 26 June 2010. ? BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The Board considered the applicant’s contentions and prior request for relief. The Board agreed the evidence does not support providing any further relief than the honorable discharge characterization which she was previously granted; all other requested relief does not have merit. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20140019765 on 24 September 2015. 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. ADMINISTRATIVE NOTE(S): Not applicable. ? REFERENCES: 1. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) provides that the ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing (sometimes referred to as an evidentiary hearing or an administrative hearing) or request additional evidence or opinions. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. Army Regulation 15-6 (Procedures for Investigating Officers and Board of Officers), in effect at the time, established procedures for investigations and boards of officers not specifically authorized by any other directive. 3. Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes the procedures used for selecting and promoting USAR commissioned officers. Paragraph 2-6 states an officer removed from an active status before promotion is final (the effective date of promotion) will be removed from the promotion list. The removal will not be considered a non-selection. If returned to an active status, the officer's name will not be placed on a promotion list or nominated for promotion unless again recommended by a selection board. An officer returned to an active status after having been in an inactive or retired status will not be considered for a Reserve of the Army promotion (mandatory or USAR position vacancy) until at least 1 year after the date of return to an active status. 4. Army Regulation 135-175 (Army National Guard and Army Reserve – Separation of Officers), in effect at the time, provided policy, criteria, and procedures for the separation of officers of USAR, except for officers serving on active duty or active duty for training exceeding 90 days. Paragraphs 2-12f and o govern acts of personal misconduct (including, but not limited to, acts committed while in a drunken or drug- intoxicated states and conduct unbecoming an officer. 5. Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer USAR Soldiers, with some exceptions. a. Paragraph 7-2f(1) states captains shall be removed on the earliest of the following dates: at 28 years of commissioned service if under age 25 at the time of the initial appointment or on their 53rd birthday if age 25 or older at the initial appointment. b. Paragraph 7-11(7)b states removal from active status becomes void if the removal was contrary to law. When the erroneous removal is discovered, the Soldier will be allowed to resume active participation in the Reserve. Removal orders will be revoked to clarify the record and the Soldier's active status will be confirmed. 6. Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (Flags)) supports the flagged records work center of the personnel service center and personnel service company and presents the flagging action program in a logical sequence. a. Paragraph 1-10d states a flag will be removed immediately when a Soldier's status changes from unfavorable to favorable. b. Paragraph 1-12 states a flag will be initiated when a Soldier is under charges, restraint, or investigation. The flag will be removed when the Soldier is released without charges, charges are dropped, or punishment is completed. 7. Army Regulation 600-85 (Alcohol and Drug Abuse and Prevention and Control Program) governs the Army Substance Abuse Program. It identifies Army policy on alcohol and other drug abuse, and assigns responsibilities for implementing the program. Chapter 16 applies to all components of the Army, including the USAR. USAR Soldiers identified as drug abusers will be: a. flagged immediately in accordance with Army Regulation 600-8-2 to suspend favorable personnel actions until separation procedures for misconduct are adjudicated and b. processed for administrative separation. 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. In addition, Soldiers may be considered for disciplinary action under the Uniform Code of Military Justice if use on active duty can be validated. 8. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes the policies governing the Army Military Human Resource Records Management Program and its composition. Once a document is placed in the official military personnel file it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the proper authorities listed in the regulation. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160012312 2 1