BOARD DATE:	  11 August 2011

		DOCKET NUMBER:  AR20110001330 


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 her discharge under other than honorable conditions be upgraded to honorable.

2.  The applicant states:

* The board recommended she be retained in the military
* She completed the 28-day scheduled Drug and Alcohol program
* She was not allowed to attend the outpatient program for one year as scheduled
* She has spent years gathering the necessary information and records needed to file to correct this injustice 

3.  The applicant provides 35 documents outlined in a list attached to 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.  Having prior honorable service in the Regular Army (RA) from 16 January 1974 to 14 January 1977, she enlisted in the RA on 30 March 1981 for a period of 3 years.  She completed her training and was awarded military occupational specialty (MOS) 76Y (Unit Supply Specialist).  She was promoted to sergeant effective 1 April 1983.  On 1 April 1984, she was honorably discharged for immediate reenlistment.  On 2 April 1984, she reenlisted for a period of 3 years.  

3.  On 16 June 1986, nonjudicial punishment (NJP) was imposed against the applicant for using cocaine.  

4.  On 16 June 1986, the applicant's unit commander initiated separation proceedings under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for misconduct (use of illegal drugs).  

5.  On 16 June 1986, she consulted with counsel and requested consideration of her case by a board of officers.  

6.  A board of officers convened on 11 November 1986 and the applicant appeared with counsel.  The board of officers found the applicant did in fact use an illegal drug resulting in misconduct and recommended that she be retained in the military and that she be enrolled in the Army Drug and Alcohol Abuse Program for rehabilitation.

7.  On 28 November 1986, she received a letter of reprimand for using cocaine.

8.  On 24 January 1987, the intermediate commander reviewed the summary of the board proceedings and concurred with the board's findings and recommendations.  

9.  In a letter, dated 16 March 1987, the intermediate commander indicated the applicant submitted an unconditional waiver of her right to a hearing before an administrative board.  He recommended that she be separated from the Army with an under other than honorable conditions discharge.  Her unconditional waiver is not available. 

10.  On 24 March 1987, the separation authority approved a waiver of her right to appear before an administrative board and directed the issuance of an under other than honorable conditions discharge.

11.  She provided a letter, dated 24 April 1987, from the Veterans Administration Medical Center which states she entered the Drug and Alcoholism Treatment Program as an inpatient on 30 March 1987 and she was scheduled to complete inpatient treatment on 27 April 1987.  The letter also states upon completion of inpatient treatment she was scheduled to be transferred to the outpatient program for a period of at least one year.   

12.  On 17 June 1987, she was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct (drug abuse) with an under other than honorable conditions discharge.  She had served a total of 9 years, 2 months, and 13 days of creditable active service with 3 days of lost time.

13.  She provided two character reference letters.  A fellow Soldier attests the applicant was instrumental in helping her become a noncommissioned officer, she was gainfully employed, drug free, and she was a productive citizen.  A friend attests the applicant is dependable, honest, caring, and she exemplifies excellent leadership skills. 

14.  There is no evidence in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations. 

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty.  Chapter 14, in effect at the time, established policy and prescribes procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, and abuse of illegal drugs.  The issuance of a discharge under other than honorable conditions was normally considered appropriate.  However, the separation authority could direct the issuance of a general discharge if such was merited by the member's overall record.

16.  Army Regulation 635-200, paragraph 3-7a, states 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.

17.  Army Regulation 635-200, paragraph 3-7b, states 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.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record supports her contention that a board of officers recommended that she be retained in the military.  However, in the absence to the contrary, it appears that separation proceedings were again initiated subsequent to the board hearing.  It further appears she submitted a waiver of her right to appear before an administrative board and the separation authority approved her request.  

2.  She contends she completed the 28-day Drug and Alcohol program but she was not allowed to attend the outpatient program for one year as scheduled.  However, there is no evidence and she provided no evidence which shows she did not attend the outpatient program.  It appears she was properly enrolled in the Army Drug and Alcohol Abuse Program for rehabilitation as recommended by the board of officers.

3.  The character reference letters submitted on behalf of the applicant fail to show her discharge was unjust and should be upgraded.

4.  Her record of service during her last enlistment included one NJP for a positive urinalysis for using cocaine.  She was a sergeant.  As a result, her record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.

5.  Her administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized her rights.  

6.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the 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.




      _______ _ 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)                                         AR20110001330



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ABCMR Record of Proceedings (cont)                                         AR20110001330



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