IN THE CASE OF: BOARD DATE: 20 November 2013 CASE NUMBER: AR20130007164 ___________________________________________________________________________ Board Determination and Directed Action After carefully examining the applicant's record of service during the period of enlistment under review and considering the Discussion and Recommendation which follows, the Board determined the discharge was both proper and equitable and voted to deny relief. Presiding Officer I certify that herein is recorded the true and complete record of the proceedings of the Department of the Army Discharge Review Board in this case. THE APPLICANT’S REQUEST AND STATEMENT: 1. The applicant requests an upgrade of her general, under honorable conditions discharge to honorable. 2. The applicant states, in effect, that she is a single mother who is attending school at Kirkwood Community College in Cedar Rapids, Iowa. She served 6 years on active duty, including a deployment to the Middle East. She is currently pursuing a Paramedic Degree so that she can continue to serve her community as an Emergency Medical Technician. The loss of her GI Bill due to the general discharge, under honorable conditions creates a significant hardship for her, such that she has to borrow additional funds to pay for her schooling and child care. 3. The Army does not have a standardized discharge for use of illegal drugs, of which the applicant was only found to have used marijuana once. Many of the Soldiers have been separated for marijuana use, but were granted an honorable discharge so that they could keep their benefits. This uneven application of discharges for the same conduct has the effect of denying benefits to a single mother who desperately needs them to create a better standard of living for herself and her child. Her discharge should be upgraded so that she can continue her education, without increasing her debt-load, so that she can continue serving her community as a Paramedic while supporting her child with a better standard of living. The applicant is currently demonstrating her rehabilitation by attaining good grades while in her degree program. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 11 April 2013 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 15 June 2012 d. Reason/Authority/SPD/RE Code: Misconduct (Drug Abuse), AR 635-200, 14-12c(2) JKK, RE-4 e. Unit of Assignment: HHD, 260th Quartermaster Battalion, 3rd Sustainment Brigade, Hunter Army Air Field, GA f. Current Enlistment Date/Term: 26 February 2009, 4 years g. Current Enlistment Service: 3 years, 3 months, 20 days h. Total Service: 6 yeas, 2 months, 18 days i. Time Lost: None j. Previous Discharges: RA 060328-090225/HD k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 88M10, Motor Transport Operator m. GT Score: 101 n. Education: HS Graduate o. Overseas Service: Southwest Asia p. Combat Service: Kuwait (101020-111020) q. Decorations/Awards: ARCOM, AAM, AGCM, NDSM, GWOTSM, ICM-CS ASR, OSR (2) r. Administrative Separation Board: Unconditionally waived an Admin Sep Board s. Performance Ratings: None t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The applicant’s record show she enlisted in the US Army Reserve and was placed in the Delayed Entry/Enlistment Program on 10 March 2006; she was discharged from the program on 27 March 2006, after serving 17 days. The applicant enlisted in the Regular Army on 28 March 2006, for a period of 3 years and reenlisted on 26 February 2009, for 4 years. She was 22 years old at the time of her reenlistment and a high school graduate. She was assigned to HHD, 260th Quartermaster Battalion, 3rd Sustainment Brigade, Hunter Army Air Field, GA. She served a combat tour in Kuwait and earned several awards that included an ARCOM, AAM, AGCM, and an ICM-CS. She completed a total of 6 years, 2 months and 18 days of military service. SEPARATION FACTS AND CIRCUMSTANCES: 1. On 8 May 2012, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, paragraph 14-12c(2), for misconduct (drug abuse), specifically for testing positive for marijuana on 16 February 2012. 2. Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge and advised the applicant of her rights. 3. On 16 May 2012, the applicant consulted with legal counsel, was advised of the impact of the discharge action, unconditionally waived consideration of her case by an administrative separation board and did not submit a statement on her own behalf. The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts. 4. On 24 May 2012, the intermediate commander reviewed the proposed action and recommended approval with a general, under honorable conditions discharge. 5. On 6 June 2012, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions. 6. The applicant was separated on 15 June 2012, under Army Regulation 635-200, Chapter 14-12c(2), with a general, under honorable conditions discharge, an SPD code of JKK, and an RE code of 4. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. The applicant's disciplinary record includes her acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), as follows: a. On 16 April 2012, for wrongfully using marijuana between on or about (120118-120216). The punishment consisted of reduction to the grade of E-3, forfeiture of $990.00 pay per month for 2 months, suspended, to be automatically remitted if not vacated before 13 October 2012, extra duty for 45 days; and an oral reprimand (FG) 2. There is one positive urinalysis report contained in the record coded as IR, Inspection Random, 16 February 2012, marijuana. 3. One negative counseling statement dated 9 May 2012, informing the applicant that she was being flagged for elimination from the Army. 4. Commander’s Request for a Behavioral Health Evaluation dated which shows the applicant’s military performance: past: as excellent and present: as marginal. 5. A CID Report, dated 28 March 2012, that indicates the applicant was the subject of an investigation for wrongfully using marijuana. 6. A DA Form 3822 Report of Mental Status Evaluation, dated 11 April 2012, which indicated the applicant was cooperative, normal and unlikely to be impulsive. She was diagnosed AXIS I (psychiatric conditions): cannabis dependence, per the Army Substance Abuse Program (ASAP), AXIS II (personality & intelligence disorders): no diagnosis, and AXIS III (medical conditions): see medical record. The applicant was mentally responsible, able to distinguish right from wrong and adhere to the right, and had the mental capacity to understand and to participate in chapter proceedings. 7. The applicant was screened for Post Traumatic Stress Disorder and Traumatic Brain Injury and the conditions were either not present, or if present, did not meet AR 40-501 criteria for a medical evaluation board. The applicant was enrolled in the Army Substance Abuse Program at Tuttle Clinic while stationed at Fort Stewart, GA. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a memorandum for record from her previous Assistant S3 supporting the applicant in her request for a general discharge, account statement from Kirkwood Community College, Paramedic, associate of Applied Science degree, Letter of congratulations to the applicant on passing the National Registry of Emergency Medical Technicians, Letter from Kirkwood Community College in reference to the applicant’s background check, and two copies of the applicant’s grades. POST-SERVICE ACTIVITY: The applicant states that she is a single mother who is attending school at Kirkwood Community College in Cedar Rapids, Iowa pursuing a Paramedic Degree. REGULATORY AUTHORITY: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. Army policy states that an under other than honorable conditions discharge is normally considered appropriate; however, a general, under honorable conditions or an honorable discharge may be granted. 2. Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’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. Whenever there is doubt, it is to be resolved in favor of the individual. 3. Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. DISCUSSION AND RECOMMENDATION: 1. The applicant’s request for an upgrade of the characterization of her discharge was carefully considered. However, after examining the applicant’s record of service, her military records, the documents, and the issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge. 2. The record confirms the applicant’s discharge was appropriate because the quality of her service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. It brought discredit on the Army, and was prejudicial to good order and discipline. The applicant, by violating the Army's policy not to possess or use illegal drugs (marijuana), compromised the trust and confidence placed in a Soldier. The applicant, as a Soldier, had the duty to support and abide by the Army's drug policies. By abusing illegal drugs, the applicant knowingly risked a military career and diminished the quality of her service below that meriting an honorable discharge. 3. The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant’s service mitigated the misconduct or poor duty performance. 4. The applicant contends the loss of her GI Bill due to the general discharge, under honorable conditions creates a significant hardship for her, such that she has to borrow additional funds to pay for her schooling and child care. Eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. 5. The applicant also contends the Army does not have a standardized discharge for use of illegal drugs, of which the applicant was only found to have used marijuana once; many of the Soldiers have been separated for marijuana use, but were granted an honorable discharge so that they could keep their benefits. This uneven application of discharges for the same conduct has the effect of denying benefits to a single mother who desperately needs them to create a better standard of living for herself and her child. The applicant's positive urinalysis test was a result of the command’s random urine testing program to maintain good order and discipline within the unit. 6. Such random testing has been upheld by civilian and military courts as lawful and does not violate the US Constitutional protections against unreasonable search and seizure, under the Fourth Amendment, and self-incrimination, under the Fifth Amendment nor does it violate Article 31 of the Uniform Code of Military Justice. In addition, military orders to produce a urine sample have been upheld in court as both legal and lawful and essential to military discipline. 7. The method in which another Soldier’s case was handled is not relevant to the applicant’s case. Applicable regulations state that each case must be decided on an individual basis considering the unique facts and circumstances of that particular case. The applicant’s statements alone do not overcome the government’s presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge. 8. The applicant contends that she is currently demonstrating her rehabilitation by attaining good grades while in her degree program. The applicant’s letters and other documents she submitted with her application outlining her accomplishments since separation from active duty were considered. The applicant is to be commended for her efforts. However, in review of the applicant’s entire service record and the reason for the discharge, it appears that this accomplishment did not overcome the reason for discharge and the characterization of service granted. 9. The records show the proper discharge and separation authority procedures were followed in this case. 10. Therefore, the reason for discharge and the characterization of service being both proper and equitable, recommend the Board deny relief. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Records Review Date: 20 November 2013 Location: Washington, DC Did the Applicant Testify? NoA Counsel: None Board Vote: Character Change: 0 No Change: 5 Reason Change: 0 No Change: 5 (Board member names available upon request) Board Action Directed: Issue a new DD Form 214: No Change Characterization to: No Change Change Reason to: No Change Change Authority for Separation: No Change Change RE Code to: No Change Grade Restoration to: NA Other: NA Legend: AMHRR - Army Military Human Resource Record FG - Field Grade IADT – Initial Active Duty Training RE - Reentry AWOL - Absent Without Leave GD - General Discharge NA - Not applicable SCM- Summary Court Martial BCD - Bad Conduct Discharge HS - High School NIF - Not in File SPCM - Special Court Martial CG - Company Grade Article 15 HD - Honorable Discharge OAD - Ordered to Active Duty UNC - Uncharacterized Discharge CID - Criminal investigation Department MP – Military Police OMPF - Official Military Personnel File UOTHC - Under Other Than Honorable Conditions ADRB Case Report and Directive (cont) AR20130007164 Page 7 of 7 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1