IN THE CASE OF:	  

		BOARD DATE:	        19 FEBRUARY 2009

		DOCKET NUMBER:  AR20080018320 


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, in effect, that her general discharge be upgraded to an honorable discharge.

2.  The applicant essentially states that she has come to learn that the vitamin supplements and other energy boosters she introduced into her body were deemed controlled substances by military standards since her departure from the military.  

3.  The applicant provides a multitude of evidence which has been indexed in a separate three-page document in support of this 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 military records show that she enlisted in the Regular Army on 5 September 1985.  She completed basic and advanced individual training and was awarded military occupational specialty (MOS) 36C (Wire Systems Installer/ Operator), which was later converted to MOS 31L (Wire Systems Installer).  She served a tour in Germany from 7 February 1986 to 4 February 1988, then was reassigned to Fort Bragg, North Carolina for what would be her last permanent duty station.  

3.  On 22 November 1988, the applicant was notified that her unit commander was considering nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for violation of Article 112a (Wrongful use, possession, etc., of controlled substance) for wrongfully using cocaine.  On 
29 November 1988, the applicant indicated that she did not demand trial by court-martial, that she requested a closed hearing and would ask a person to speak on her behalf, and that she would present matters in defense, mitigation, and/or extenuation in person.  On that same date, she accepted NJP for the aforementioned offense, and her punishment consisted of a reduction in rank and pay grade from sergeant/E-5 to specialist four/E-4, forfeiture of $464.00 pay per month for 2 months, 45 days of extra duty, and restriction for 45 days, with 
21 days of her restriction suspended and ultimately remitted without further action.  She appealed this punishment, and submitted additional matters.  In a memorandum, dated 5 December 1988, the applicant essentially stated that she never knowingly used any drugs, and that the use of any stimulants such as drugs, alcohol, tobacco and coffee were contrary to her personal beliefs and teachings as a Seventh Day Adventist.  On 19 December 1988, her appeal was denied.

4.  On 21 December 1988, the applicant's commanding officer informed her that he intended to recommend her for administrative separation from the United States Army under the provisions of Chapter 14 (Separation for Misconduct), Army Regulation 635-200 (Enlisted Personnel) for commission of a serious offense.  He based this on the fact that the applicant submitted a urine sample on 8 November 1988 that tested positive for cocaine.  He also recommended that the applicant receive a general discharge, and advised her of her rights.  

5.  On 22 December 1988, the applicant acknowledged that she had been advised by her consulting counsel of the basis for the contemplated action to separate her for misconduct under the provisions of Chapter 14, Army Regulation 635-200 and its effects; of the rights available to her, and the effect of any action taken by her in waiving her rights.  She elected to submit a statement in her own behalf, and understood that she could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to her.  
6.  In a memorandum, dated 6 January 1989, the applicant essentially maintained her insistence that she was not guilty of the alleged misconduct, and wished to be retained in the Army.  

7.  On 9 January 1989, the proper separation authority approved the applicant's discharge under the provisions of paragraph 14-12c, Army Regulation 635-2000 and directed that she be issued a General Discharge Certificate.  On 25 January 1989, the applicant was discharged accordingly.

8.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and absences 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 a discharge under other than honorable conditions is normally considered appropriate, but a general discharge under honorable conditions or an honorable discharge may be granted.  It also states, in pertinent part, that abuse of illegal drugs is a serious offense, and that Soldiers are subject to separation under this paragraph for commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial.

10.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) provides, in pertinent part, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

11.  This same regulation provides, in pertinent part, 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.
12.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her general discharge should be upgraded to an honorable discharge.

2.  The evidence provided by the applicant was carefully considered.  However, In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, 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.

3.  The applicant's contention that vitamin supplements and other energy boosters she allegedly introduced into her body at the time caused her to test positive for cocaine was considered, but found to lack merit.  There is no evidence that she made any mention of vitamin supplements or other energy boosters at the time she accepted NJP or during her administrative separation proceedings.  Rather, she clearly stated at the time that the use of any stimulants, including drugs, alcohol, tobacco, and coffee were contrary to her personal beliefs and religious faith.  As a result, her claim now, nearly 20 years after the fact and without any independent evidence to corroborate and confirm that she used vitamin supplements or other energy boosters at the time, does not begin to approach the threshold of proving, by a preponderance of the evidence, that an error or injustice occurred when she tested positive for cocaine.

4.  The evidence of record shows that the applicant accepted NJP under Article 15 of the UCMJ for wrongfully using cocaine, and that she did not demand trial by court-martial as was her option if she believed she was innocent.  It also shows that she was discharged for the abuse of illegal drugs, which is a serious offense, and the applicant failed to provide evidence which shows that any requirements of law and regulation were not met, or that her rights were not fully protected throughout the separation process.  As a result, regularity must be presumed in this case.

5.  The applicant's entire record of service was considered.  However, by wrongfully using cocaine, her record of indiscipline so far outweighs her record of service that upgrade of her discharge cannot be justified.  In view of the foregoing, there is no basis for granting relief to the applicant in this case.

BOARD VOTE:

________  ________  ________  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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _ XXX  _______   ___
               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)                                         AR20080018320



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ABCMR Record of Proceedings (cont)                                         AR20080018320



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