IN THE CASE OF: BOARD DATE: 3 June 2015 CASE NUMBER: AR20140010203 ___________________________________________________________________________ Board Determination and Directed Action 1. 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 characterization was improper. 2. The record shows the government introduced into the discharge packet the results of a biochemical test which was coded CO (Command Directed) as stated on the collection sheet. This is limited use information as defined in AR 600-85 and is protected evidence because there is no indication in the discharge packet that the command recognized the “Command Directed urinalysis” could not be used as a basis for the applicant’s characterization of service. Further, there is no CID report or counseling statements that shed any light on the reason the urinalysis was authorized. Use of this information mandates award of an honorable characterization of service. 3. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable. However, the reason for the discharge was proper and equitable and the Board voted not to change it. 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 characterization of service to honorable. 2. The applicant states, in effect, she desires an upgrade of her discharge for better job opportunities and her own personal reasons. The applicant did not present any issues of propriety or equity for the Board to consider. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 9 June 2014 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 1 July 2002 d. Reason/Authority/SPD/RE Code: Misconduct, AR 635-200, Chapter 14-12c, JKQ, RE-3 e. Unit of assignment: 259th Field Service Company, Fort Bragg, NC f. Current Enlistment Date/Term: 14 July 2000/3 years g. Current Enlistment Service: 1 year, 11 months, 18 days h. Total Service: 1 year, 11 months, 18 days i. Time Lost: None j. Previous Discharges: None k. Highest Grade Achieved: E-3 l. Military Occupational Specialty: 92S10, Laundry and Textile Specialist m. GT Score: 86 n. Education: HS Graduate o. Overseas Service: None p. Combat Service: None q. Decorations/Awards: NDSM, ASR r. Administrative Separation Board: NIF s. Performance Ratings: NA t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 14 July 2000, for a period of 3 years. She was 19 years old at the time of entry and a high school graduate. Her record is void of any significant acts or awards of valor and achievement; however, completed 1 year, 11 months, and 18 days of active duty service. When her discharge proceedings were initiated, she was serving at Fort Bragg, NC. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record shows that on 28 March 2002, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason of misconduct—commission of a serious offense, for assaulting another Soldier and testing positive for marijuana twice. 2. The unit commander recommended an under other than honorable conditions discharge and advised the applicant of her rights. 3. On 1 April 2002, the applicant consulted with legal counsel, was advised of the impact of the discharge action, voluntarily waived consideration of her case by an administrative separation board contingent upon receiving a characterization of service no less favorable than general, under honorable conditions and did not submit a statement on her behalf. The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts. The intermediate commander reviewed the proposed action and recommended approval of the separation with an under other than honorable conditions discharge. 4. On 18 April 2002, the separation authority disapproved the conditional waiver request, and referred the applicant’s case to an administrative separation board. 5. On 23 April 2002, the applicant was notified to appear before an administrative separation board. However, the record is void of the findings and recommendations of the board. 6. On 11 June 2002, the separation authority reviewed and approved the recommendations for separation pertaining to the applicant, waived rehabilitation efforts and directed she be discharged from the Army with a characterization of service of general, under honorable conditions. 7. The applicant was discharged from the Army on 1 July 2002, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct, a Separation Program Designator code (SPD) of JKQ and an RE code of 3. 8. The applicant’s service record does not contain any evidence of unauthorized absences or time lost. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. There are two positive urinalysis reports contained in the record: CO, Command Directed, 25 January 2002, marijuana CO, Command Directed, 11 January 2002, marijuana 2. Article 15, dated 22 February 2002, for wrongful use of marijuana (011211-010111 and 011225- 020125), and unlawfully striking and biting PFC R (020109). The punishment consisted of reduction to the grade of E-1, forfeiture of $552 per month for two months, and 45 days of extra duty and restriction (FG). 3. Article 15, dated 28 August 2001, for disobeying a lawful order on two occasions and being disrespectful to a NCO (010808). The punishment consisted of a reduction to the grade of E-2 (suspended), forfeiture of $284 pay per month for one month, and 14 days of extra duty and restriction (suspended) (CG). 4. DA Form 2627-2 (Record of Supplementary Action under Article 15, UCMJ), dated 31 January 2002, reflects the applicant’s non-judicial punishment imposed on 28 August 2001 was vacated for wrongful use of marijuana on 11 December 2001 and 11 January 2002, and unlawfully striking and biting PFC R on 9 January 2002. 5. Two negative counseling statements dated 8 August 2001 and 15 January 2002, for failing to obey a lawful order, insubordination and fighting. 6. A MP Blotter Report, dated 11 January 2002, reflects the applicant was the subject of an investigation for simple assault-consummated with a battery. 7. A mental status evaluation, dated 14 March 2002, reflects the applicant was mentally responsible but had no evidence of any psychiatric conditions that may have warranted disposition through medical channels. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 293, dated 10 June 2014, and a DD Form 214. POST-SERVICE ACTIVITY: The applicant did not provide any in support of her application. 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. After a careful review of all the applicant’s military records, the issue submitted with the application, the characterization of service appears to be improper. 2. The record confirms on 11 January 2002 and 25 January 2002, the applicant was given a command directed urinalysis (CO) and she tested positive for marijuana. On 22 February 2002, the applicant accepted non-judicial punishment for wrongfully using marijuana based on that urinalysis. Her punishment for this offense was a reduction to the grade of E-1, forfeiture of $552 per month for two months, and 45 days of extra duty and restriction. 3. If the test basis for the urinalysis was CO, as stated on the collection sheet, then the Article 15 was improper. There is no indication in the Chapter paperwork that the command recognized that the “Command Directed Urinalysis” could not be used as the basis for the Article 15. Further, there is no indication the command believed the urinalysis was improperly coded “CO.” There are also no CID reports or counseling statements that shed any light on the reason the urinalysis was authorized. 4. It appears the urinalysis was not miscoded therefore, the discharge and Article 15 were improper based on the introduction of limited use evidence in the discharge paperwork. However, the question whether the urinalysis was properly coded is a question of fact for the Army Discharge Review Board to determine given the contrary conclusions that could be drawn by the command’s treating the urinalysis as though it was not limited use evidence. The command was either unaware of the implications of the limited use policy or it failed to note in the record the urinalysis was improperly coded. 5. The records show the proper discharge and separation procedures were not followed in this case. 6. Therefore, the characterization of service being improper, recommend the Board grant relief by upgrading the applicant’s characterization to honorable. However, the reason for the discharge was fully supported by the record and remains both proper and equitable. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Records Review Date: 3 June 2015 Location: Washington, DC Did the Applicant Testify? NA Counsel: None Witnesses/Observers: NA Board Vote: Character Change: 5 No Change: 0 Reason Change: 0 No Change: 5 (Board member names available upon request) Board Action Directed: Issue a new DD Form 214: Yes Change Characterization to: Honorable Change Reason to: No Change Change Authority for Separation: NA Change RE Code to: NA 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) AR20140010203 Page 2 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1