BOARD DATE:	  4 January 2011

		DOCKET NUMBER:  AR20100013273 


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 correction of her military records to remove "possession of controlled substance" and to upgrade her discharge from a general under honorable conditions discharge (GD) to an honorable discharge (HD).

2.  The applicant states:

	a.  she was discharged for a positive urinalysis and not for possession of a controlled substance;

	b.  in a brief summary, her military history in the U.S. Army Reserve (USAR) and Regular Army;

	c.  during her military service she placed her children in the care of her friend who physically and sexually abused them;

	d.  subsequent to her training, she attempted to press charges against her friend, but because of the passage of time she could not prove the abuse and blamed herself for the horrible experience her children endured;

	e.  she proceeded to get her children into family counseling, but she failed to get individual counseling for herself and began to self medicate resulting in her positive urinalysis for cocaine; and

	f.  upon completing a 28-day treatment program ordered by her commander, she returned to her unit and successfully fulfilled her assigned duties without incident; however, she was still separated from the Army with a GD.

3.  The applicant provides the following:

* a two-page Internet document titled, "Core Criminal Law Subjects"
* self-authored statement
* two character reference statements
* U.S. Army Criminal Investigation Command (USACIDC) letter
* USACIDC memorandum
* DA Form 5180-R (Urinalysis Custody and Report Record)
* DA Form 4833 (Commander's Report of Disciplinary or Administrative Action)
* The American Legion letter

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 record shows she enlisted in the Regular Army on 12 February 1991 and held military occupational specialty 75D (Personnel Records Specialist).

3.  Her disciplinary history includes her acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) 4-7 October 1991.

4.  On 2 December 1991, a final Criminal Investigation Division (CID) Report of Investigation (ROI) determined the applicant violated Article 112 of the UCMJ for “Wrongful Possession and Use of a Controlled Substance (Cocaine).


5.  On 6 January 1992, the unit commander issued the applicant a formal letter of reprimand (LOR) based on the results of a urinalysis she took on 7 October 1991 which showed she tested positive for cocaine.  It shows she admitted she used cocaine during the period that she was AWOL because she was experiencing many personal problems and felt distressed.

6.  On 16 January 1992, the unit commander notified the applicant he was initiating action to separate her under the provisions of paragraph 14-12c, Army Regulation 635-200 (Personnel Separations), for misconduct.  The unit commander cited the applicant's AWOL, positive urinalysis results, and a second-notice dishonored check in the amount of $579.00 as the basis for taking the action.

7.  On 27 January 1992, she consulted with legal counsel and was advised of the basis for the contemplated action to separate her for the commission of a serious offense under the provisions of paragraph 14-12c, Army Regulation 635-200, and its effects, of the rights available to her, and of the effect of a waiver of those rights.  Subsequent to this counseling, the applicant elected to have her case considered by an administrative separation board, to personally appear before an administrative separation board, and to have consulting counsel.

8.  On 31 August 1992, an administrative separation board convened at the Military District of Washington, Washington, DC, to consider the applicant's case. The applicant and her counsel were present.  Upon completion of the hearing and having carefully considered all of the evidence, the board found that the applicant did commit misconduct within the meaning of chapter 14, Army Regulation 635-200, by being AWOL 4-7 October 1991, using cocaine, and endorsing a dishonored check, and recommended that she be separated prior to her expiration term of service (ETS) and that she receive a GD.

9.  On 19 November 1992, the separation authority approved the applicant's separation and directed she receive a GD.  On 14 December 1992, the applicant was discharged accordingly.

10.  Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she completed 1 year, 9 months, and 22 days of active military service at the time of her discharge.

11.  Her record is void of any indication that she petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

12.  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, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  Although a discharge under other than honorable conditions is normally considered appropriate for a Soldier discharged under this chapter, the separation authority may issue an HD or GD if warranted by the member's overall record of service.

13.  Army Regulation 635-200, paragraph 3-7a, provides that an HD 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.

14.  Department of Defense Instruction 5505.7 contains the authority and criteria for titling decisions.  It states, in pertinent part, that titling only requires credible information that an offense may have been committed.  It further indicates that regardless of the characterization of the offense as founded, unfounded, or insufficient evidence, the only way to administratively remove a titling action from the Defense Central Investigations Index (DCII) is to show either mistaken identity or a complete lack of credible evidence to dispute the initial titling determination.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her military records should be corrected to remove "possession of controlled substance" and to upgrade her discharge from a GD to an HD.

2.  The evidence of record confirms the applicant accepted nonjudicial punishment on one occasion for being AWOL and she received an LOR for testing positive for cocaine following a urinalysis.  By violating the Army's policy not to possess or use illegal drugs, she compromised the trust and confidence placed in her as a Soldier.  She had the duty to support and abide by the Army's drug policies.  By using illegal drugs, she knowingly risked her military career and clearly diminished the overall quality of her service below that meriting an HD.


3.  The evidence of record confirms her separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and her rights were fully protected throughout the separation process.  It further shows the separation authority directed the applicant receive a GD, which was appropriate based on the regulatory guidance.

4.  The evidence of record confirms that the results of a CID investigation provided a sufficient legal basis for the applicant to be titled for “wrongful possession and use of a controlled substance”. In addition, based on the applicant’s confession of using cocaine as indicated in the LOR, it appears that she wrongfully possessed the substance prior to her use of it.  As a result, the applicant's record appropriately shows she violated Article 112a of the UCMJ (wrongful possession and use of a controlled substance) and there is no basis to correct her record to show otherwise.

5.  By law and regulation, titling only requires credible information that an offense may have been committed.  Regardless of the characterization of the offense as founded, unfounded, or insufficient evidence, the only way to administratively remove a titling action from the DCII is to show either mistaken identity or a complete lack of credible evidence to dispute the initial titling determination.  The applicant has failed to provide evidence satisfying this standard for removal.  

6.  Absent evidence to the contrary, it is concluded that all requirements of law and regulation were met in the titling process, and that the rights of the applicant were protected throughout the process.  She is, therefore, not entitled to relief.

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 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)                                         AR20100013273



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ABCMR Record of Proceedings (cont)                                         AR20100013273



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