IN THE CASE OF:	  

	BOARD DATE:	  20 May 2008

	DOCKET NUMBER:  AR20080002626 


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 an upgrade of her discharge.

2.  The applicant states that prior to her discharge, she did not have a history of drug or alcohol abuse.  She further adds that since her discharge, she continued to improve her life.  She is currently a senior in college and needs credit for a physical education course.  However, she states, she is unable to take the course due to her disabilities and cannot receive credit for the course because of the character of her service.

3.  The applicant did not provide any supporting documentary evidence in support of her application. 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2.  The applicant's records show that she enlisted in the Regular Army for a period of 3 years on 10 July 1980.  She completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 71L (Administrative Specialist).  Her records also show she reenlisted in the Regular Army for a period of 4 years on 10 June 1983.  The highest grade she attained during her military service was specialist four (SP4)/E-4.

3.  The applicant’s awards and decorations include the Army Service Ribbon, the Overseas Service Medal, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16).  Her records do not show any significant acts of valor during her military service.

4.  On 4 August 1983, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of the Military Justice (UCMJ) for wrongfully distributing 6 grams, more or less, of marijuana, with intent to distribute, on or about 16 May 1983, and for wrongfully possessing 1.04 grams, more or less, of marijuana, on or about 21 June 1983.  Her punishment consisted of reduction to private (PVT)/E-1 (suspended for 6 months) and a forfeiture of $150.00 pay per month for 2 months.

5.  On 4 December 1984, she was tendered a letter of reprimand for failure to maintain her Army and Air Force Exchange Service (AAFES) Deferred Payment Plan (DPP) in current status.  The imposing commander remarked that her delinquent account indicated she was irresponsible and portrayed an indifferent attitude towards fulfilling her financial responsibilities.

6.  On 20 March 1985, the applicant participated in a unit urinalysis and her urine sample tested positive for cocaine.

7.  On 21 June 1985, the applicant accepted nonjudicial punishment under Article 15 of the UCMJ for wrongfully using some amount of cocaine, on or about 20 March 1985.   Her punishment consisted of reduction to private (PVT)/E-1; a forfeiture of $300.00 pay per month for 2 months, 45 days of restriction, and 45 days of extra duty.

8.  On 11 September 1985, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against her in accordance with paragraph 14-12(b) of Army Regulation 635-200 (Personnel Separations), for misconduct, abuse of illegal drugs, and for establishing a pattern of misconduct.

9.  On 11 September 1985, the applicant acknowledged receipt of the commander's intent to separate her.  She consulted with legal counsel, and was advised of the basis for the contemplated separation for misconduct, the type of discharge she could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to her.  She elected not to submit a statement on her own behalf.

10.  On 11 September 1985, the applicant’s immediate commander initiated separation action against her in accordance with paragraph 14-12(b) of Army Regulation 635-200 due to a pattern of misconduct and abuse of illegal drugs.  The immediate commander further remarked that the applicant:

      a.  demonstrated a pattern of misconduct, resulting in numerous counseling statements, letters of concern, letters of delinquent accounts, and NJP;

      b.  was counseled for a variety of disciplinary infractions and misconduct, to include failing to follow orders, failing to be at her appointed place of duty, failure to perform assigned duties in her MOS, and failure to meet the Army’s physical fitness readiness test.  Furthermore, she demonstrated a poor attitude towards her job, peers, and superiors, displayed prejudicial conduct to good order and discipline, and lacked initiative and desire to meet Army standards;
	
      c.  was arrested by civilian authorities for wrongfully possessing amphetamines with intent to distribute and wrongfully possessing marijuana, cocaine, and heroin while in a leave status;

	d.  was notified on three different occasions that her AAFES DPP account was delinquent; 

	e.  received NJP for wrongfully possessing and distributing marijuana; and

      f.  tested positive for cocaine.

11.  On 11 September 1985, the applicant’s senior commander concurred with the immediate commander’s comments and recommended approval of the applicant’s discharge.   

12.  On 16 September 1985, the separation authority approved the applicant’s discharge, under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct-drug abuse, and directed the applicant be furnished a General Discharge Certificate.  Accordingly, she was discharged on 1 October 1985.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) 
she was issued shows her service was characterized under honorable conditions.  This form further confirms she completed a total of 5 years,
2 months, and 22 days of creditable military service.

13.  There is no indication in the applicant’s records that she applied to the Army Discharge Review Board (ADRB) for an upgrade of her discharge within that Board’s 15 year statute of limitations.

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

15.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant had a history of disciplinary problems, ranging from failure to conduct herself as a Soldier to the more serious offenses of possessing and distributing drugs as evidenced by her arrest by civil authorities for wrongfully possessing marijuana, cocaine, and heroin while in a leave status.

2.  The evidence of record further shows the applicant’s discharge was appropriate because the quality of her service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.  Her record of service shows she accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ on two separate occasions for serious offenses.  Therefore, the applicant is not entitled to an honorable discharge.

3.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  Therefore, she is not entitled to relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  DENY APPLICATION

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 for correction of the records of the individual concerned.



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       _   _______   ___
       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.

ABCMR Record of Proceedings (cont)                                         AR20080002626



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ABCMR Record of Proceedings (cont)                                         AR20080002626



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