IN THE CASE OF:	  

		BOARD DATE:	6 December 2011

		DOCKET NUMBER:  AR20110011205


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 general discharge to an honorable discharge.

2.  The applicant states she would like to go back to school under the Illinois Veterans Grant Program and she needs an honorable discharge to qualify for the grant.

3.  The applicant provides no additional evidence.
 
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 23 May 1989.  She completed training and was awarded military occupational specialty 77F (Petroleum Supply Specialist).

3.  On 7 October 1993, she received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for the wrongful use of marijuana after receiving a positive unit urinalysis test on
24 August 1993.

4.  On 17 November 1993, her immediate commander barred her from reenlistment.

5.  On 25 February 1994, she was notified by her immediate commander of his intent to initiate separation action against her under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, for the commission of a serious offense (testing positive for marijuana).  Her immediate commander informed her that she would be recommended for retention in the U.S. Army.

6.  On 25 February 1994, after consultation with counsel, she acknowledged she had been advised by counsel of the basis for the contemplated separation action under Army Regulation 635-200, chapter 14, and its effects; of the rights available to her; and of the effect of any action taken by her to waive her rights.  She chose to not submit a statement in her own behalf.

7.  On 17 March 1994, her immediate commander recommended that she be retained in the U.S. Army until the expiration of her term of service.

8.  On 21 March 1994, her battalion commander concurred with the immediate commander's recommendation that she be retained in the U.S. Army; however, on 3 June 1994, having reconsidered the matter, he changed his recommendation and recommended that she be discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, with the issuance of an under other than honorable conditions discharge.

9.  The separation authority's decision memorandum pertaining to this recommendation is not available for review.

10.  On 29 July 1994, she received NJP under the provisions of Article 15, UCMJ for wrongfully receiving stolen property, on or about 12 July 1994. 


11.  On 31 August 1994, she was notified by her immediate commander of his intent to initiate separation action against her under the provisions of Army Regulation 635-200, chapter 14, for the commission of a serious offense (testing positive for marijuana and receipt of stolen property).  

12.  On 31 August 1994, after consultation with counsel, she acknowledged she had been advised by counsel of the basis for the contemplated separation action under Army Regulation 635-200, chapter 14 and its effects, of the rights available to her, and of the effect of any action taken by her to waive her rights.  In this instance, she chose to submit a statement in her own behalf

13.  On 31 August 1994, her immediate commander recommended the issuance of a general discharge.

14.  On 9 September 1994, the battalion commander concurred with the immediate commander's recommendation that the applicant be discharged from the U.S. Army with the issuance of a general discharge.  

15.  On 23 September 1994, the separation authority approved her discharge action under the provisions of Army Regulation 635-200, chapter 14 and directed that she be given a general discharge.  On 3 October 1994, she was discharged accordingly.  Her DD Form 214 (Certificate or Release or Discharge from Active Duty) confirms she was discharged by reason of misconduct.  She completed a total of 5 years, 4 months, and 11 days of net active service during this period.  The highest rank/grade she attained while serving on active duty was specialist/E-4.

16.  On 31 January 1997, the Army Discharge Review Board reviewed her request for an upgrade of her discharge and determined it was proper and equitable and her request lacked sufficient evidence to warrant relief.

17.  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.  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.  

18.  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 request for an upgrade of her general discharge was carefully considered; however, there is insufficient evidence to support her request.

2.  The applicant's administrative separation was accomplished in accordance with applicable regulations with no indication of procedural errors which would have jeopardized her rights.  The evidence of record shows she consulted with counsel and was advised of the basis for the separation action.

3.  Based on her record of misconduct – including the commission of a serious offense – her service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, she is not entitled to an honorable discharge.

4.  In view of the foregoing, there is no basis for granting the 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 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)                                         AR20100022260



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ABCMR Record of Proceedings (cont)                                         AR20110011205



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