IN THE CASE OF:	  

		BOARD DATE:	  13 October 2011

		DOCKET NUMBER:  AR20110005828 


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 discharge under honorable conditions be upgraded to an honorable discharge
* that her Reentry Eligibility (RE) code be upgraded from "3" to "1"
* that all references to misconduct be removed from her otherwise excellent service record

2.  The applicant states, in effect, that she was under duress during the entire discharge process and was not capable of making a plea bargain with the attorney assigned to her case.  She further contends that if she had been afforded an opportunity to take another urinalysis test as she requested she would have been exonerated because an Army message claimed there was a 10% error rate in urinalysis testing throughout the U.S. Army Recruiting Command and the high percentage rate was being investigated.

3.  The applicant contends the urine sample chain of custody was broken at least once when they were left unattended in a hot classroom during a scheduled class break.  She further contends that she was not visually seen urinating into the sample cup because she was unable to provide an adequate sample that morning.  She further contends that she was pregnant at the time and her commander would not entertain her request for a pregnancy discharge because of her positive urinalysis test results.  In addition to this matter, she was still grieving the deaths of her father and brother and had endured their double funeral less than 120 days prior to the alleged misconduct.  She concludes that she was treated unfairly with no concern for her unborn child and the rest of her family.

4.  The applicant provides her:

* self-authored statement
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Separation Packet
* Urinalysis Lab Report
* DA Form 3822-R (Report of Mental Status Evaluation
* Criminal Investigation Command (CID) Report of Investigation (ROI)

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 28 October 1976.  Upon completion of initial entry training, she was awarded military occupational specialty (MOS) 76J (Medical Supply Specialist).  At a later date, she was trained in and awarded MOS 79R (Recruiter).  She served continuously through a series of immediate reenlistments until she was discharged on 29 November 1989.  The highest rank/grade she attained while serving on active duty was staff sergeant (SSG)/E-6.

3.  Her record contains a DA Form 3881 (Rights Warning Procedure/Waiver Certificate), dated 17 August 1989, which shows a CID investigator advised her she was suspected of wrongful possession and use of a controlled substance (cocaine) and he desired to question her about this matter.  Before doing so, the investigator advised the applicant of her lawful rights and she invoked her right to be represented by a lawyer.


4.  On 19 August 1989, the applicant's unit commander notified her he was initiating action which could result in separation from the Army with a general discharge under honorable conditions under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for misconduct for wrongful use of an illegal drug (cocaine).  She was advised of her rights and the impact of the discharge.  She acknowledged receipt of the notification and requested consideration of her case by an administrative separation board during a personal appearance, consulting counsel, and representation by military counsel. 

5.  On 29 August 1989, the applicant received pregnancy counseling from her unit adjutant and indicated her desire to be separated from active duty due to pregnancy on 15 December 1989.

6.  A CID investigation was conducted and finalized on 12 September 1989.  As a result, it was determined that although the applicant was afforded privacy in a bathroom stall while providing her urinalysis sample, the chain of custody was not broken because she was responsible for the specimen bottle at the time in question.  It was opined that there was sufficient evidence to believe the applicant had wrongfully used cocaine.

7.  On 25 September 1989, a request was submitted to have the applicant's urine specimen retested.

8.  On 5 October 1989, the applicant underwent a mental status evaluation.  The examiner made the following observations:

* her behavior was normal
* she was fully alert
* her mood or affect was unremarkable
* her thinking process was clear
* her thought content was normal 
* her memory was good
* she had the mental capacity to understand and participate in the proceedings
* she was mentally responsible
* she was medically cleared for any administrative action deemed appropriate by her command




9.  A Laboratory Report, dated 12 October 1989, shows the applicant's urine specimen had been retested and was positive for cocaine once again.

10.  The unit commander subsequently recommended that the applicant be separated from the service based on positive urinalysis for cocaine which was conducted on 1 August 1989.  The intermediate commander reviewed the proposed discharge action and recommended approval of the separation action with a general discharge under honorable conditions.

11.  The applicant requested a conditional waiver and acknowledged she had been advised by consulting counsel of the basis for the contemplated action against her; that she understood she was entitled to have her case considered by a separation board which could result in separation under less than honorable conditions.  She elected to waive her right to do so contingent upon her receiving a characterization of service or description of separation no less favorable than General under honorable conditions.  She indicated she was making this request of her own free will and attested that she had not been subjected to any coercion whatsoever by any person.  She understood she may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to her.  This could also render her ineligible for some benefits as a veteran under both Federal and State laws.  She further indicated she understood that she would be ineligible to apply for enlistment in the U.S. Army for a period of 2 years after discharge.

12.  On 17 November 1989, the separation authority waived the separation proceedings and approved her waiver of her right to appear before an administrative separation board.  He then directed that the applicant be separated under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct - abuse of illegal drugs.  He determined her service would be characterized as under honorable conditions and that she would be issued a General Discharge Certificate.

13.  On 29 November 1989, the applicant was discharged accordingly.  Her DD Form 214 shows:

* her service was characterized as under honorable conditions (general)
* she was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c(2) with a Separation Program Designator (SPD) code of JKK and an RE code of 3
* her narrative reason for separation was "Misconduct - Abuse of illegal drugs"


14.  The applicant's record is void of any evidence and she has not provided any evidence which shows:

* she was under duress during the discharge process and was not capable of making a plea bargain with the attorney assigned to her case
* she was denied an opportunity to take another urinalysis test
* the urine sample chain of custody was broken at least once when they were left unattended in a hot classroom during a scheduled class break
* she was still grieving the deaths of her father and brother
* she was treated unfairly with no concern for her unborn child and the rest of her family.

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

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration term of service date.  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.

17.  Army Regulation 635-5-1 (SPD Codes), in effect at the time of the applicant's separation, provided the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It stated, in pertinent part, that the SPD code of JKK was the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12c(2), for Misconduct (Drug Abuse).

18.  The SPD/RE Code Cross Reference Table indicates that an RE code of 4 was the proper code to assign members separated with an SPD code of JKK at the time of the applicant's discharge.

19.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the United States Army Reserve.  Chapter 3 of that regulation prescribes the basic eligibility for prior service applicants for enlistment.  This chapter includes a list of armed forces RE codes, including RA RE codes:

	a.  RE code 1 applies to persons who are considered fully qualified for reentry or continuous service at the time of separation.

	b.  RE code 3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable.

	c.  RE code 4 applies to persons separated from their last period of service with a nonwaivable disqualification.

20.  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's contentions that her record should be corrected by upgrading her discharge to an honorable discharge, upgrading her RE Code to "1," and 
removal of all references to misconduct from her service record were carefully considered and found to lack merit.

2.  Her record is void of any evidence and she has failed to provide any evidence in support of the following contentions; therefore, they are unfounded allegations and do not mitigate her misconduct:

* she was under duress during the entire discharge process and was not capable of making a plea bargain with the attorney assigned to her case
* she was denied an opportunity to take another urinalysis test
* the urine sample chain of custody was broken at least once when they were left unattended in a hot classroom during a scheduled class break
* she was still grieving the deaths of her father and brother
* she was treated unfairly with no concern for her unborn child and the rest of her family.

3.  A CID investigation was conducted and it was determined that although the applicant was afforded privacy in a bathroom stall while providing her urinalysis sample, the chain of custody was not broken because she was responsible for the specimen bottle at the time in question.  The specimen was retested at a later date and found to be positive for cocaine a second time.  

4.  The applicant's pregnancy counseling was not initiated until after she tested positive for cocaine use.

5.  The applicant underwent a mental status evaluation and was psychiatrically cleared for any administrative action deemed appropriate by her command.

6.  The evidence shows the applicant was properly and equitably discharged in accordance with the statutes and regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized her rights.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects her overall record of service.  The evidence also shows the applicant was assigned the appropriate SPD code of JKK and RE code of 3 at the time of her discharge.

7.  Based on her record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered her service unsatisfactory.  Therefore, she is not entitled to an upgrade of her undesirable discharge to an honorable discharge or to an upgraded RE code.

8.  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)                                         AR20110005828



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ABCMR Record of Proceedings (cont)                                         AR20110005828



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