BOARD DATE:	  2 December 2010

		DOCKET NUMBER:  AR20100017277 


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 under other than honorable conditions discharge.

2.  The applicant states she was not convicted of any offense. 

3.  The applicant provides a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 enlisted in the Regular Army for a period of 3 years on
11 October 1978.  Upon completion of basic combat and advanced individual training, she was awarded military occupational specialty (MOS) 05B (Radio Operator).  The highest rank/grade she attained was specialist four (SP4)/E-4.

3.  On 15 July 1981, the applicant was discharged for immediate reenlistment on 16 July 1981 for 3 years.

4.  On 6 May 1982, the applicant received nonjudical punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for disobeying a noncommissioned officer.  Her punishment consisted of reduction to private first class (PFC)/E-3, suspended for 90 days; a forfeiture of $100.00 pay; and
14 days extra duty.

5.  On 27 August 1982, the applicant was interviewed by a special agent of the U.S. Army Criminal Investigation Command (USACIDC, also known as CID) for the suspected wrongful possession and use of heroin and cocaine.  During this interview the applicant admitted to using cocaine for several months.   

6.  On 5 January 1983, the applicant was advised by her company commander that she was being recommended for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, for misconduct - commission of a serious offense.  The company commander stated that the reason for his recommendation for elimination was due to the applicant’s wrongful possession and use of cocaine.  On the same day, she acknowledged receipt of the notification of separation action.

6.  On 6 January 1983, having been advised by her consulting counsel of the basis for the contemplated separation action and its effects, of the rights available to her and the effect of any action taken by her in waiving her rights, she waived consideration of her case by and personal appearance before a board of officers.  She elected not to submit any statements in her own behalf.  She also did not request a separation medical examination.  She further acknowledged she understood that she may expect to encounter substantial prejudice in civilian life if an under other than honorable conditions discharge is issued to her.

7.  The applicant’s DD Form 214 shows she was discharged on 27 January 1983 under the provisions of Army Regulation 635-200, chapter 14, for misconduct – commission of a serious offense.  At the time she had completed 4 years,
3 months, and 17 days of net active service this period.


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

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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.  A discharge under other than honorable conditions is 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.

	b.  Army Regulation 625-200, paragraph 3-7b, provides 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

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends she was not convicted of any offense.  On 27 August 1982, the applicant was interviewed by a CID agent for the suspected possession and use of heroin and cocaine.  During this interview the applicant admitted to using cocaine for several months.  The applicant’s admission of using cocaine is evidence she committed an offense punishable under the UCMJ.  The company commander initiated elimination under the provisions of Army Regulation 635-200, chapter 14, for misconduct - commission of a serious offense instead of punishment under the UCMJ.

2.  The applicant’s administrative discharge was accomplished in compliance with applicable regulations and the rights of the applicant were fully protected throughout the separation process.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.


3.  In view of the foregoing, there is no basis for granting the applicant's requested 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 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)                                         AR20100017277



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ABCMR Record of Proceedings (cont)                                         AR20100017277



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