IN THE CASE OF:	  

		BOARD DATE:	        3 March 2009

		DOCKET NUMBER:  AR20080019895 


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, an upgrade of her discharge.  

2.  The applicant states that she was young at the time and tried to blend in with others.  She did not truly understand or comprehend the mistakes she made would continue to haunt her to the present.  She adds that in the past 20 years, she has been an active participant in her church, community, and work environment.  She also adds that she is a role model to her child and that it is difficult to explain the downfall of drug usage when a parent has not had the same discretion.   

3.  The applicant did not provide any additional 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 she was born on 19 April 1959 and enlisted in the Regular Army at 19 years of age for a period of 4 years on 13 September 1978.  She completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 98J (Electronic Warfare/Signal Intelligence Interceptor).  She also executed a 5-year reenlistment in the Regular Army on 12 February 1982 and attained the rank/grade of staff sergeant (SSG)/E-6 on 23 November 1983.

3.  The applicant’s records also show she served in Germany from on or about 28 May 1979 to on or about 25 June 1981 and on or about 26 September 1982 to on or about 26 March 1985.

4.  The applicant’s records further show she was awarded the Army Service Ribbon, the Overseas Service Ribbon, the Army Commendation Medal, the Noncommissioned Officer Professional Development Ribbon with Numeral 2, the Good Conduct Medal (2nd Award), and the Expert Marksmanship Qualification Badge with Rifle Bar (M-16).

5.  On 3 March 1986, the applicant participated in a unit urinalysis and her urine sample tested positive for marijuana. 

6.  On 27 May 1986, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana between on or about 21 February 1986 and on or about 3 March 1986.  Her punishment consisted of reduction from SSG/E-6 to  sergeant (SGT)/E-5, 30 days of extra duty, 30 days of restriction (suspended for 60 days), and a forfeiture of $592.00 pay for 2 months (suspended, except $100.00 for 60 days).  She appealed her punishment to the next higher authority; however, her appeal was denied.

7.  On 4 August 1986, the applicant participated in a unit urinalysis and again her urine sample tested positive for marijuana. 

8.  On 2 December 1986, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for wrongfully using marijuana between on or about 26 July 1986 and on or about 4 August 1986.  Her punishment consisted of reduction from SGT to specialist four (SP4)/E-4, a forfeiture of $476.00 pay (suspended for 60 days), and 45 days of extra duty.

9.  On 3 December 1986, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against her in accordance with paragraph 14-12(c) of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for misconduct, abuse of illegal drugs.  

10.  On 3 December 1986, the applicant acknowledged receipt of the separation memorandum and waived her right to consult with legal counsel.  Her unit commander subsequently advised her of the basis for the contemplated separation for misconduct and its effect; of the rights available to her and the effect of any action taken by her in waiving her rights; and the type of discharge and its effect on further enlistment or reenlistment.  

11.  The applicant further acknowledged that she understood that she could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him and that she could be ineligible for many or all benefits as a veteran under Federal and State laws.  The applicant further waived her right for consideration of her case by an administrative separation board, waived personal appearance before an administrative separation board, and elected not to submit a statement in her own behalf.

12.  On 3 December 1986, the applicant’s immediate commander initiated separation action against her in accordance with paragraph 14-12c of Army Regulation 635-200 for misconduct, commission of a serious offense.  The immediate commander further remarked that the applicant’s discharge was recommended because of her discreditable conduct which was prejudicial to good order and discipline in the unit and the Army.  The immediate commander also remarked that the applicant had been found to be positive for use of marijuana on two separate occasions.   

13.  On 4 December 1986, the applicant’s intermediate commander recommended approval of the applicant’s discharge in accordance with paragraph 14-12c of Army Regulation 635-200, with a general, under honorable conditions discharge.

14.  On 17 December 1986, the separation authority approved the applicant’s discharge under the provisions of chapter 14, paragraph 14-12c of Army Regulation 635-200 by reason of misconduct-abuse of illegal drugs, and directed the applicant be furnished a General Discharge Certificate.  Accordingly, the applicant was discharged on 6 January 1987.  The DD Form 214 she was issued confirms she was discharged with a character of service of under honorable conditions (general).  This form further confirms that she completed a total of
8 years, 3 months, and 24 days of creditable active military service.  

15.  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.

16.  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.

17.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her discharge should be upgraded.  

2.  The evidence of record shows the applicant was 19 years of age at the time of her enlistment and 26 years of age when her sample tested positive for marijuana the first time.  However, there is no evidence that indicates that the applicant was any less mature than other Soldiers of the same age.

3.  The evidence of record shows that the applicant’s discharge was appropriate based on her unlawful abuse of marijuana that was detected during the unit administered urinalysis on 3 March and 3 August 1986.  Her record of service shows she accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for the wrongful use of marijuana on two different occasions.  Based on her record of indiscipline, the applicant's service clearly does not merit an upgrade to her discharge.

4.  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.  Based on her record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to an honorable discharge.  

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)                                         AR20080019895



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080019895



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1