IN THE CASE OF: BOARD DATE: 13 November 2020 DOCKET NUMBER: AR20200006219 APPLICANT REQUESTS: via voluntary remand by the U.S. District Court for the District of Columbia, reconsideration of Army Board of Correction of Military Records (ABCMR) Docket Number AR20160012312, dated 20 March 2019, denying: * 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 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Complaint, Counsel, dated 18 March 2020 * Summons in a Civil Action, U.S. District Court for the District of Columbia, unsigned and undated * Order, U.S. District Court for the District of Columbia, dated 22 May 2020, unsigned * Letter, Counsel, regarding: Supplemental Materials for Consideration on Remand, 22 June 2020 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 2-12o 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 (Army Reserve – Assignments, Attachments, Details, and Transfers), in effect at the time, 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 time of the initial appointment. b. Paragraph 7-11b 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 (Military Personnel Information Management/Records), in effect at the time, prescribed policies, operating tasks, and steps governing the Official Military Personnel File (OMPF), the Military Personnel Records Jacket, the Career Management Individual File, Army Personnel Qualification Records, and Military Personnel Information Management as a work category. Paragraph 2-4 provided that once a document is placed in the OMPF, 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 ABCMR or other authorized agency. 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 AR20160012312 on 20 March 2019. 2. The court and counsel agreed to remand the applicant's case to issue a new decision on the applicant's request to correct her military records and other requested relief. a. At a minimum and without limitation, the ABCMR will: (1) consider and address the issues raised in the applicant's complaint, including but not limited to her claims that: (a) the Board of Inquiry lacked substantial evidence to support its findings; (b) there were procedural irregularities at the Board of Inquiry, including lack of favorable witnesses despite their availability; (c) there were irregularities in the urinalysis conducted for the applicant; and (d) the applicant's unit commander was unaware of problems with the urinalysis conducted for her, otherwise he would have nullified the results of the urinalysis; and (2) will also fully consider during its review and address in its recommendation: (a) the 2014 Army Discharge Review Board (ADRB) decision to grant relief based on findings of urinalysis irregularities and conduct of the Board of Inquiry; and (b) evidence of the area commander's attempt to suspend applicant's discharge contingent upon her submitting to random urinalysis testing; and b. The ABCMR will address whether any remand item, individually or collectively, constitutes an injustice necessitating correction. 3. The U.S. District Court for the District of Columbia Order, dated 22 May 2020, states the applicant shall have 30 days after entry of the Court's remand and stay order to submit supplemental matters to the ABCMR. The applicant's counsel's letter, dated 22 June 2020, regarding: Supplemental Materials for Consideration on Remand, shows no additional evidence was submitted. Counsel states: a. The applicant requests the following relief: (1) removal of all derogatory statements, flags, references to misconduct, and inferences or documents related to the adverse administrative action and involuntary separation from her OMPF; (2) retroactive reinstatement and constructive service credit for all time lost between her separation from the USAR and the date upon which she would have had sufficient time in grade to retire in the rank/grade of major/O-4; (3) retroactive promotion to major on the date she would have been promoted but for her removal from the promotion list due to being placed under suspension of favorable personnel actions and her involuntary separation; (4) corrections to reflect that she became entitled to Non-Regular retired pay commensurate with the rank of major upon reaching age 60 on 16 October 2016; (5) retroactive retired pay and any other back pay, allowances, and entitlements due as a result of the Board's correction; and (6) any additional corrections the Board deems necessary to provide full and fitting relief and make her whole consistent with the law of the U.S. District Court for the District of Columbia. b. As the U.S. District Court for the District of Columbia stated: "when a military records correction fails to correct an injustice clearly presented in the record before it, it is acting in violation of its statutory mandate under 10 U.S.C. § 1552 [Title 10, U.S. Code, section 1552]." c. The ABCMR has a legal duty to provide full and fitting relief to make the applicant whole. 4. The applicant's OMPF does not contain her record of misconduct. 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 conducted on 3 August 2008. Her commander was instructed to initiate separation action and initiate a flag (suspension of favorable actions). 6. On 25 November 2008, she acknowledged receipt of notification to show cause for retention due to a positive result for tetrahydrocannabinol on 3 August 2008 and a retest on 21 August 2008. She elected consideration of her case by a board of officers. 7. The Summarized Administrative Separation Proceedings recorded the board's proceedings on 2 May 2009 to determine whether the applicant should be administratively separated from the U.S. Army and how her discharge should be characterized. a. A U.S. Army Medical Service Corps officer testified as the subject matter expert, explained the forensic integrity to maintain the chain of custody from the very beginning to the very end, and explained the procedures at Tripler Army Medical Center where the applicant's sample was tested. b. The applicant's unit prevention leader who supervised the unit's urinalysis on 3 August 2008 testified to the procedures and the chain of custody. c. The observer testified to her duties and responsibilities and observation of the applicant's urinalysis specimen bottle collection. d. An Army Substance Abuse Program clinical psychologist testified that she found no diagnosis of substance abuse and did not enroll the applicant in the Army Substance Abuse Program. The psychologist stated, "I do not believe the testing in Tripler is 100% accurate" and believed the applicant should be allowed to stay in the military. e. The applicant's commander testified to her performance and the suspension of favorable personnel actions that has kept her from being promoted to the rank/grade of major/O-4. f. The 1984th U.S. Army Hospital Commander testified to the applicant's work performance. 8. The DA Form 1674 (Report of Proceedings by Investigating Officer/Board of Officers), dated 2 May 2009, states the administrative separation proceedings conducted by a Board of Officers found in: a. Section IV (Findings): * the allegation of personal misconduct – specifically, the use of marijuana by the applicant – is supported by a preponderance of evidence * the allegation of conduct unbecoming of an officer – specifically, the use of marijuana by the applicant – is supported by a preponderance of the evidence b. Section V (Recommendations): Recommended the applicant's separation from the service and receipt of a discharge under other than honorable conditions. c. Section VII (Action by Appointing Authority): The appointing authority approved the findings and recommendations with the following exceptions: * discharge suspended for 12 months on the condition the applicant submits to urinalysis/breathalyzer * the applicant does not act unbecoming of an officer in any way 9. The defense counsel's memorandum, dated 7 May 2009, subject: Request to Reconsider Separation Action against (Applicant), states: a. The applicant requests reexamination of the evidence submitted by the defense. (1) She took her own drug test immediately upon being notified of the positive test result on 15 August 2008. The test showed a negative result. (2) She took five additional urinalyses after the 3 August 2008 test and all those tests were negative. (3) The clinical psychologist at the Army Substance Abuse Program found no diagnosis for any drug use and did not believe she should be separated from the service. (4) Both of her commanders testified at the separation board. Both recommended her retention and found that any drug use would be entirely inconsistent with her character. b. There is no dispute that she rendered 17 years of exceptional service to the Army with absolutely no blemishes on her military record, this current matter notwithstanding. If the decision is to separate her, the defense asks for reconsideration of the recommendation to separate her with a discharge under other than honorable conditions. A discharge under other than honorable conditions is simply not justified based her undisputed record of fine service. The discharge under other than honorable conditions is an unnecessarily harsh recommendation. 10. On 15 June 2009, the legal review determined the separation action met the requirements of Army Regulation 135-175 and was legally sufficient. a. The following specific findings were noted: (1) All proceedings complied with applicable legal requirements, no appointing or substantial errors were present. (2) Sufficient evidence supported the board's findings that the applicant used marijuana and engaged in conduct unbecoming an officer. (3) The board's recommendation to discharge the applicant from the USAR under other than honorable conditions was consistent with and warranted by its findings. b. The Headquarters, 9th Mission Support Command, Deputy Staff Judge Advocate stated: (1) The applicant's request to the commanding general to reconsider the evidence presented at the hearing and the evidence presented after the hearing, in hope of reversing the board's findings and recommendations and being retained, is inappropriate and not authorized. (2) The applicant's allegations in her reconsideration request were already raised at the board hearing by her defense counsel. (3) The applicant was given the opportunity to challenge each board member for fairness and impartiality and she declined to do so. (4) A review of the entire record and evidence presented at the hearing reveals no defects and no errors or omissions in the record and the Board of Inquiry did not commit any error that may have affected a substantial right of the applicant. 11. On 14 July 2009, the Commanding General, Headquarters, 9th Mission Support Command, recommended the applicant's separation from the USAR with a service characterization of under other than honorable conditions and suspension of the separation for a period of 12 months, with the suspension contingent upon her submitting to voluntary urinalysis examinations and alcohol breathalyzer tests every month and meeting the appropriate standards of conduct and duty performance. 12. 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. 13. U.S. Army Human Resources Command Orders D-11-018981, dated 3 November 2010, discharged her from the USAR under other than honorable conditions effective 1 December 2010. 14. 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 15. 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. Her OMPF contains the ADRB Record of Proceedings, dated 7 January 2013. 16. The applicant applied to the ADRB again on 9 July 2014, stating her discharge was improper and inequitable. The entire case against her was based on an isolated incident discrediting over 19 years of faithful and honorable service. She requested an upgrade in her service characterization to honorable and reinstatement in the USAR. 17. On 22 September 2014, the ADRB voted to grant 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 ADRB found the circumstances surrounding her discharge that included the 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 Board of Inquiry, all mitigated the discrediting entry in her service record. The ADRB determined her service characterization was too harsh based on her service record. 18. 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. 19. On 10 November 2014, the U.S. Army Human Resources Command published new discharge orders showing her type of discharge as honorable. 20. Her records are void of the facts and circumstances surrounding her attempts to gain appointment in the USAR to serve until she reached the maximum age of 60 on 16 October 2016, nor did she provide evidence supporting this claim. 21. 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: a. The ADRB determined the characterization of her service was too harsh based on her service record. Notwithstanding the relief granted by the ADRB, the applicant's isolated incidence of misconduct adversely affected the quality of her service, brought discredit upon the Army, and was prejudicial to good order and discipline. There is no evidence and she provided insufficient evidence showing her Board of Inquiry was not conducted in accordance with regulatory guidance and she did not receive due process. b. The evidence shows her administrative discharge was accomplished in compliance with applicable laws and regulations in effect with no indication of procedural errors which would have jeopardized her rights. Absent a reason to reinstate her, there is no basis for assigning her to a position. c. The evidence presented did not demonstrate the existence of a probable error or injustice. The applicant was suspended from favorable actions for a positive urinalysis for marijuana 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. 22. On 20 March 2019, the ABCMR considered the applicant's request for reconsideration of ABCMR Docket Number AR20140019765, dated 24 September 2015. The Board determined: * there is insufficient evidence to grant relief * 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 * the evidence presented does not demonstrate the existence of a probable error or injustice * the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20140019765, dated 24 September 2015 BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 2. The Board reviewed the applicant’s contentions, the previous decisions in this case, the 22 May 2020 remand order issued by the United States District Court for the District of Columbia, the applicant’s filings, through counsel, in the same Court, and the evidence of record. The Board considered the issues raised by the applicant in her complaint, including that: the Board of Inquiry (BOI) lacked substantial evidence to support its findings; there were procedural irregularities at the BOI, including lack of favorable witnesses called despite their availability; there were irregularities in the urinalysis procedures; and, the applicant’s unit commander was unaware of problems with the urinalysis, otherwise he would have nullified the results. The ABCMR also discussed the 2014 Army Discharge Review Board (ADRB) decision, which upgraded the applicant’s discharge to Honorable and changed the narrative reason to Secretarial Authority, as well as the area commander’s attempt to suspend the discharge contingent upon the applicant submitting to urinalysis testing. The Board found the applicant has failed to demonstrate by a preponderance of evidence an error or injustice warranting the requested relief, specifically: removal of all derogatory statements, flags, references to misconduct, inferences, or documents related to the adverse administrative action and involuntary separation from her file; retroactive reinstatement and constructive service credit for all time lost between her separation from the United States Army Reserve (USAR) and the date upon which she would have had sufficient time to retire in the rank of Major (MAJ); retroactive promotion to MAJ on the date she would have been promoted but for her removal from the promotion list due to being placed under suspension of favorable personnel action and involuntary separation; corrections to reflect entitlement to non-regular retired pay commensurate to the rank of MAJ upon reaching age 60 on 16 October 2016; and back retired pay and any other back pay, allowances, and entitlements. 3. The Board considered the applicant’s contentions regarding irregularities with the August 2008 urinalysis and found them outweighed by the other evidence of record. While a metal bar hasp should have been attached to the file cabinet used to temporarily store the August 2008 urinalysis specimens, the Board found that this does not render the positive test results invalid. Army Regulation 600-85, appendix E, in effect at the time of the urinalysis, states that failure to comply with the provisions of the standard operation procedures (SOP) for urinalysis collection, processing, and shipping, which includes attachment of a metal bar hasp to file cabinets used to temporarily store urinalysis specimens, will not be used to invalidate an otherwise valid and legally sufficient adverse administrative action. The SOP provides no rights or privileges as to the relevancy and admissibility of laboratory documents not otherwise afforded by the regulations governing adverse administrative or disciplinary action. The Board found that the greater weight of the evidence reflects that the August 2008 urinalysis specimens were secured and there was no evidence of tampering. The Board further noted that the subsequent urinalysis, 12 days after the original test, did not invalidate the positive test results. The Board found it unlikely, though ultimately speculative, that the unit commander would have nullified the urinalysis results solely on the basis that the specimens were stored in a file cabinet not fitted with a metal hasp bar particularly in light of the lack of tampering with the urinalysis specimen, otherwise secure storage, and positive test result. As such, the Board determined the applicant has not demonstrated by a preponderance of the evidence that the conduct of the urinalysis was prejudicially flawed. 4. The Board considered the applicant’s contentions that the BOI lacked substantial evidence to support its findings as well as the alleged procedural irregularities. The Board found these contentions outweighed by the other evidence of record. Following the positive test result, involuntary separation action was initiated as required by Army regulations. A BOI convened in May 2009 and heard testimony from multiple witnesses called by both the recorder and respondent. The applicant was represented by counsel throughout the proceedings. Prior to the BOI, the applicant emailed her defense counsel a list of eight witnesses she wanted called at the BOI. Defense counsel did not call several of those witnesses, but did call a clinical psychologist and two of the applicant’s commanders who testified extensively on her behalf. The BOI transcript does not reflect defense counsel or the applicant were prevented from calling the additional witnesses. At the BOI, witnesses testified regarding the chain of custody and storage of the urinalysis specimens as well as the accuracy of the test results. The BOI considered testimony from the applicant’s commanders and clinical psychologist – favorable witnesses called by the respondent, who each recommended retention. After deliberations, the BOI found the allegations of personal misconduct and conduct unbecoming an officer, specifically, the use of marijuana by the applicant, were supported by a preponderance of the evidence – the appropriate legal standard – and recommended she be involuntarily separated from the USAR with an Under Other Than Honorable Conditions discharge characterization. The Board determined the BOI’s findings and recommendation were supported by the evidence and testimony presented. The Board found the applicant has not demonstrated by a preponderance of the evidence a procedural or substantive error in the conduct of the BOI that materially affected her rights. 5. The Court directed the ABCMR to specifically address the 2014 ADRB decision. The ADRB’s authority is limited to review of the character, reason, and authority of a discharge on the basis of propriety and equity. In September 2014, the ADRB determined the applicant’s discharge was inequitable and directed a change to the discharge characterization and narrative reason for discharge. The ADRB found the circumstances surrounding the discharge mitigated the discrediting entry in her service record. The ABCMR noted that the ADRB did not make a finding that the discharge was improper – i.e., did not determine there was an error of fact, law, procedure, or discretion that prejudiced the rights of the applicant or that the BOI or urinalysis was conducted contrary to law and regulation. Rather the ADRB appears to have been persuaded, in light of the evidence of record including the applicant’s contentions regarding the urinalysis and BOI, that the circumstances surrounding the discharge rendered it overly harsh (inequitable) warranting a discharge upgrade. 6. Finally, the Court directed the ABCMR to specifically address the area commander’s attempt to suspend the applicant’s discharge contingent on urinalysis testing. The Board noted that, unlike in cases of enlisted Soldiers where the separation authority may suspend execution of an approved separation, there is no such authority available in officer elimination actions. The area commander was not the separation authority for the applicant (a commissioned officer) and had no authority to recommend a suspended discharge. Rather the area commander’s authority is limited to remedying errors in board proceedings and, in cases where there is no error, forwarding copies of the proceedings with a recommendation for approval or disapproval to Headquarters, Department of the Army, which renders the final decision. As such, the Board determined the area commander’s attempt to suspend the discharge exceeded his regulatory authority and does not impact whether the applicant was properly separated from the USAR. 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 for correction of the records of the individual concerned. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200006219 13 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1