IN THE CASE OF:	 

		BOARD DATE:	  13 December 2011

		DOCKET NUMBER:  AR20110010678


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 be upgraded to an honorable discharge (HD).

2.  The applicant states:

* she suffered from chronic depression
* she was totally dysfunctional
* she was not processed for a medical discharge because, at that time, chronic depression was not a mental illness
* she resigned for the good of the service
* she was a Distinguished Military Graduate (DMG) from Reserve Officer Training Corps (ROTC)
* she has been a Registered Nurse (RN) for 28 years

3.  The applicant provides:

* a written statement
* her DD Form 214 (Certificate of Release or Discharge from Active Duty)
* her DMG Certificate
* an Outstanding Young Women of America Certificate
* an ROTC Advance Camp Certificate of Training
* an Operating Room Nursing Course Diploma
* an EKG (electrocardiogram) Interpretation Certificate of Training


* a Critical Care Medicine Certificate of Training
* a Continuing Health Education Certificate of Training

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.  Following graduation from Tuskegee University with a degree in nursing, the applicant accepted appointment as a Second Lieutenant, Army Nurse on 8 May 1983 upon being designated a DMG from ROTC.

3.  The applicant reported for active duty on 16 April 1984.  Following training, she was assigned to Bayne-Jones Army Community Hospital, Fort Polk, LA as an operating room nurse.

4.  In June 1986, a confidential informant (CI) for the U.S. Army Criminal Investigation Command (USACIDC, also known as CID) reported the applicant had smoked cocaine during mid-June 1986.

5.  The applicant was interviewed by the CID on 2 July 1986.  After being advised of her rights, she waived her rights and rendered a statement admitting to:

* snorting cocaine at a party several months prior to the interview
* smoking cocaine in mid-June 1986

6.  The applicant was charged with violating the Uniform Code of Military Justice (UCMJ), Article 112A, wrongful possession and use of cocaine.  

7.  On 9 September 1986, the applicant's commander forwarded court-martial charges against her and recommended she be tried by a General Court-Martial (GCM).  Also on 9 September 1986, the applicant requested resignation for the good of the service under the provisions of chapter 5, Army Regulation 635-200.

8.  The applicant's request for resignation was forwarded to Headquarters, Department of the Army (HQDA).  At HQDA the Ad Hoc Review Board recommended the applicant's resignation be accepted and that her discharge be under other than honorable (UOTHC) conditions.  On 17 November 1986, the Deputy Assistant Secretary of the Army for DA Review Boards approved the resignation and directed a discharge UOTHC.

9.  On 12 December 1986, the applicant was discharged UOTHC.

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

11.  Army Regulation 635-120 implemented the statutory provisions of Title 10, U.S. Code, governing active duty officer resignations and discharges.  Chapter 5 of this regulation provided that an officer could submit a resignation for the good of the service when court-martial charges were preferred against the officer with a view toward trial by general court-martial, the officer was under suspended sentence of dismissal, or the officer elected to tender a resignation because of reasons outlined in Army Regulation 635-100, paragraph 5-11a(7) (misconduct or moral or professional dereliction) prior to charges being preferred and prior to being recommended for elimination under the provisions of Army Regulation 635-100.  The regulation provided that a resignation for the good of the service, when approved at Headquarters, Department of the Army, was normally accepted as being under other than honorable conditions.

12.  Army Regulation 635-100 (officer Separations) provided the authority for the separation of commissioned and warrant officers from the Active Army.  It stated, in  pertinent part:

	a.  A commissioned or warrant officer will normally be furnished an honorable discharge certificate unless conditions exist as indicated in b and c below, or as directed by the Secretary of the Army or HQDA.  Discharge shall be characterized as "Honorable" when substandard performance of duty is the sole basis for discharge or when the discharge is based solely on pre-service activities.

	b.  General Discharge Certificate (under honorable conditions) may be issued when:

* unqualified resignation in circumstances involving serious misconduct
* discharge because of serious misconduct, including misconduct for which punishment has been imposed, which renders the officer unsuitable for further service
* discharge for physical disability resulting from intentional misconduct or willful neglect, or which was incurred during a period of unauthorized absence
* discharge under the Military Personnel Security Program if directed by HQDA 

	c.  UOTHC discharge certificate is issued when:

* there is a request for resignation for the good of the service
* when convicted by civil authorities of any offense and finally sentenced to confinement in a Federal or State penitentiary or correctional institution
* discharged under the Military Personnel Security Program if directed by HQDA
* when recommended and approved by the Secretary of the Army, in connection with elimination proceedings under chapter 5, for reasons of misconduct, moral or professional dereliction, or in the interest of national security

DISCUSSION AND CONCLUSIONS:

1.  The applicant admitted using cocaine.  This offense is, in and of itself, incompatible with the code of conduct required for all Soldiers.  However, her offense was even more egregious because she was an officer and an Army nurse who worked hospital operating rooms.

2.  The applicant states she was discharged because she was chronically depressed; however there is no record of her suffering from depression while on active duty.

3.  The applicant's voluntary request for resignation under the provisions of Army Regulation 635-120, chapter 5, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

4.  The applicant's request for resignation, even after appropriate and proper consultation with a military lawyer, tends to show she wished to avoid the court-martial and the punitive discharge that she might have received. 



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)                                         AR20110010678





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110010678



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1