IN THE CASE OF:	

		BOARD DATE:	23 June 2009  

		DOCKET NUMBER:  AR20090004409 


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, under honorable conditions discharge (GD) be upgraded to a fully honorable discharge (HD).

2.  The applicant states, in effect, that she excelled for the majority of her military service, which included a deployment to Saudi Arabia for six months, during which she provided emergency and routine medical care in a variety of operational and clinical settings, often spending 24 to 72 hour shifts on Patriot Missile sites.  She further states that she was promoted to specialist (SPC)/E-4, completed the primary leadership development course (PLDC), and often worked in a supervisory role.  

3.  The applicant indicates that her last few months in the Army were not the finest hours of her life; on the contrary, they were the lowest.  She claims she made several bad decisions during this time and she regrets each one; and she was ultimately discharged with a GD due to a positive urine test for drugs.  The applicant further outlines her post-service conduct and accomplishments, which she claims show she has proven herself to be sufficiently honorable and ethical to warrant an upgrade of her GD.

4.  The applicant submits the following documents in support of her application:  self-authored statement, Phi Theta Kappa Induction Certificate, Seattle Central Community College Unofficial Student Transcript, DA Form 1059 (Service School Academic Evaluation Report), and DA Form 2-1 (Personnel Qualification Record).


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 record shows she enlisted in the Regular Army (RA) and entered active duty 27 November 1995.  She was trained in, awarded, and served in military occupational specialty (MOS) 91B (Medical Specialist).

3.  The applicant's DA Form 2-1 shows, in Item 18 (Appointments and Reductions), that she entered the RA in the rank/grade of private (PV2)/E-2, and that she was advanced to private first class (PFC) on 27 November 1996.  She was subsequently promoted to SPC on 1 October 1997, which is the highest rank she attained while serving on active duty.

4.  The applicant's record also shows that during her active duty tenure, she earned the Army Achievement Medal with 1st Oak Leaf Cluster, Army Good Conduct Medal, National Defense Service Medal, Army Service Ribbon, Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and Marksman Marksmanship Qualification Badge with Grenade Bar.

5.  On 1 September 1999, pursuant to her plea, a Summary Court-Martial (SCM) found the applicant guilty of violating Article 112a of the Uniform Code of Military Justice (UCMJ) for the wrongful use of cocaine.  The resultant sentence was a reduction to private (PV1)/E-1, forfeiture of $884.00, and 20 days of hard labor without confinement.

6.  On 16 November 1999, the unit commander notified the applicant that he was initiating action to separate her under the provisions of paragraph 14-12c,
Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), based on her SCM conviction of 1 September 1999, for wrongful use of cocaine.  He also recommended she receive a GD.


7.  On 16 November 1999, the applicant acknowledged receipt of the proposed separation action.  She consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects.  The applicant completed her election of rights requesting representation by counsel, and electing to make a statement in her own behalf.

8.  On 17 November 1999, the applicant submitted a rebuttal statement questioning the validity of her SCM conviction claiming her rights were violated and that her counsel was not allowed to properly represent her.  There is no documentary evidence on file regarding an SCM appeal made by the applicant or any action on any such appeal by proper authorities.  

9.  On 17 November 1999, the separation authority, upon the recommendation of the applicant’s chain of command, directed that the applicant be separated under the provisions of paragraph 14-12c, Army Regulation 635-200, and that she receive a GD.  On 22 November 1999, the applicant was discharged accordingly.

10.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant upon her discharge shows she was separated by reason of “Misconduct” after completing 3 years, 11 months, and 26 days of creditable active military service.

11.  On 26 October 2001, the Army Discharge Review Board (ADRB), after carefully considering the applicant’s case, concluded that her discharge was proper and equitable, and it voted to deny her request to upgrade her discharge.

12.  Army Regulation 635-200 provides the policies, standards, and procedures for the separation of enlisted personnel from the Army.  Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.  Paragraph 14-3 contains guidance on characterization of service for members separated under chapter 14.  It states, in pertinent part, that an under other than honorable conditions discharge is normally appropriate for a Soldier discharged under this chapter.  The separation authority may direct a GD if such is merited by the Soldier's overall record.  A characterization of honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be inappropriate.  An HD may be approved only by the commander exercising general court-martial jurisdiction, or higher authority, unless authority is properly delegated. 


DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that her post-service conduct warrants an upgrade of her GD to an HD has been carefully considered.  However, this factor is not sufficiently mitigating to grant the requested relief.

2.  The evidence of record confirms that the applicant was convicted of the wrongful use of cocaine by an SCM and the applicant admits that she tested positive for drugs on a urine test.  As a result, it is clear the applicant violated the Army's policy not to possess or use illegal drugs and compromised the trust and confidence placed in her as a Soldier.  

3.  Although the applicant's post-service accomplishments and conduct are noteworthy, these factors are not sufficiently mitigating to support granting the applicant's requested relief.  As a Soldier, she had the duty to support and abide by the Army's drug policies.  By abusing illegal drugs, she knowingly risked a military career and clearly diminished the overall quality of his service below that meriting an HD.  Therefore, there was no basis to support the issue of an HD by the separation authority at the time of her discharge, or to support an upgrade of her discharge at this time.  

4.  The evidence of record also confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Therefore, absent any evidence of any error or injustice related to her separation processing, there is an insufficient evidentiary basis to support granting the requested relief.  

5.  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. 

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.



      __________x____________
               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)                                         AR20090004409



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ABCMR Record of Proceedings (cont)                                         AR20090004409



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