IN THE CASE OF:	  

		BOARD DATE:  23 February 2012

		DOCKET NUMBER:  AR20110015802 


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 upgrade of her general discharge to an honorable discharge.

2.  The applicant states:

* it has been 18 years since her discharge took place
* during that time she was being investigated for failing to pass a drug test
* during her interview with her Judge Advocate General (JAG) representative she requested to attend a rehabilitation program and she sought therapy counseling
* she was discharged under honorable conditions

3.  The applicant provides:

* a Standard Form 180 (Request Pertaining to Military Records) with instructions for completing the form
* a DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers)
* her General Discharge Certificate

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 U.S. Army Reserve (USAR) on 7 April 1981 in the rank/grade of private (PV1)/E-1 for a period of 6 years.  She remained a member of the USAR through two extensions and one reenlistment.  She was advanced through the ranks to specialist (SPC)/E-4.

3.  On 10 July 1993, a board of officers convened to determine whether the applicant should be administratively separated from the USAR for misconduct.  The board determined she committed acts constituting misconduct by providing urine samples during a random urinalysis conducted by the U.S. Army, which tested positive for cocaine and marijuana.  The board recommended the applicant be separated from the USAR in accordance with Army Regulation
135-178 (Army National Guard and Army Reserve Enlisted Administrative Separations), paragraph 7-11c(1), for misconduct - abuse of illegal drugs, with a general discharge.

4.  The Commander, U.S. Army Reserve Command, approved the board's findings and recommendation and directed her separation with a general discharge, effective 15 November 1993.

5.  Orders 94-020-048, issued by Headquarters, U.S. Army Reserve Command, Atlanta, GA, dated 29 October 1993, discharged the applicant from the USAR under the provisions of Army Regulation 135-178, effective 15 November 1993.  She was issued a General Discharge Certificate.

6.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of her discharge within that board's 15-year statute of limitations.

7.  Army Regulation 135-178, chapter 7, establishes the policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, patterns of misconduct, commission of a serious 

offense, and related charges.  Paragraph 7-11c(1) states that abuse of illegal drugs is a serious offense and that discharge action will normally be based on commission of the offense.  It also states that a single drug abuse offense may be combined with one or more disciplinary infractions, or incidents of other misconduct, for discharge.  Individuals in pay grade E-5 and above, and all Soldiers with 3 or more years of total military service (Regular and Reserve) will be processed for separation upon discovery of a drug offense.  Second time drug offenders must be processed for separation after a second offense.

8.  Army Regulation 135-178, paragraph 2-9, provides an honorable characterization of service is appropriate when the quality of the Soldier's service generally has met the standard of acceptable conduct and performance of duty for Army Personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  An honorable characterization may only be awarded a Soldier upon completion of his or her service obligation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.

2.  She was discharged for misconduct - abuse of illegal drugs.  Although it has been over 18 years, the passage of time is not a basis for upgrading her discharge.  The applicant has not shown error or injustice in the type of discharge she received as her service was not completely honorable

 3.  A board of officers convened and determined she should be separated with a general discharge.  The appropriate authority approved the board's findings and recommendation.

4.  Abuse of illegal drugs is a serious offense and discharge action will normally be based on commission of such an offense.  The character of her service is proper.

5.  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)                                         AR20110015802



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ABCMR Record of Proceedings (cont)                                         AR20110015802



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