IN THE CASE OF:
BOARD DATE: 28 February 2012
DOCKET NUMBER: AR20110017059
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 general discharge under honorable conditions be upgraded to honorable.
2. The applicant states:
a. Her rights were violated by psychological abuse. Article 138 of the Uniform Code of Military Justice (UCMJ), "chapter 13," protects a Soldier's right to complain and request correction of a grievance against his or her commander. Her discharge was improper and inequitable. She was mentally and psychologically abused by her supervising sergeants. A former co-worker died from an overdose in an attempt to deal with the mental anguish and fear experienced.
b. She developed a mental condition (major depressive disorder) from her military service. Her service record was good and she should have been separated because of unsatisfactory performance and received an honorable discharge. She requests the separation authority disregard incidents of minor misconduct prior to her discharge because she was attempting to receive help through rehabilitation programs.
c. The Department of Veterans Affairs recently diagnosed her with attention deficit hyperactivity disorder and this explains her pattern of minor disciplinary infractions. A lot of her actions were beyond her control because of this condition. Prior to swearing in she was not properly evaluated to be fit enough to serve on active duty.
d. She strongly believes her chain of command had a personal grudge against her.
3. The applicant provides:
* mental health/psychiatric records
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
CONSIDERATION OF EVIDENCE:
1. A DD Form 2808 (Report of Medical Examination), dated 10 June 2008, shows the applicant was found qualified for service. She enlisted in the Regular Army on 24 June 2008 for a period of 3 years and 20 weeks. She completed training and was awarded military occupational specialty 92F (petroleum supply specialist).
2. A report of behavioral health evaluation, dated 20 October 2009, shows she:
* was found mentally responsible
* was diagnosed with an adjustment disorder with anxiety and depressed mood
3. On 30 December 2009, the applicant was notified of her pending separation for misconduct (abuse of illegal drugs) for wrongful use of marijuana under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), paragraph 14-12c.
4. On 30 December 2009, she consulted with counsel, waived her rights, and she elected not to submit a statement on her own behalf.
5. On 6 January 2010, the separation authority approved the recommendation for discharge and directed the issuance of a general discharge.
6. She was discharged under honorable conditions (general) on 25 January 2010 under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct (drug abuse). She completed a total of 1 year, 7 months, and 2 days of creditable active service.
7. She provides a discharge summary, dated 28 April 2009, which shows she was diagnosed with major depressive disorder, single episode, with psychotic features and alcohol, marijuana, and cocaine abuse. She also provides a discharge summary, dated 19 November 2009, which shows she was diagnosed with major depression, recurrent, severe, with psychotic features and alcohol and marijuana abuse.
8. On 11 May 2011, the Army Discharge Review Board denied her request for an honorable discharge.
9. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty. 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, conviction by civil authorities, and abuse of illegal drugs. The regulation states that abuse of illegal drugs is serious misconduct. The issuance of a discharge under other than honorable conditions is normally considered appropriate.
10. 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.
11. Chapter 19 (Complaints under Article 138) of Army Regulation 27-10 (Military Justice) establishes procedures for the preparation, submission, and disposition of complaints made pursuant to Article 138, UCMJ, by a member of the Armed Forces against a commanding officer. Article 138 states: "Any member of the Armed Forces who believes himself wronged by his commanding officer, and who, upon due application to that commanding officer, is refused redress, may complain to any superior commissioned officer, who shall forward the complaint to the officer exercising court-martial jurisdiction over the officer against whom it is made. The officer exercising general court-martial jurisdiction shall examine into the complaint and take proper measures for redressing the wrong complained of and he shall, as soon as possible, send to the Secretary concerned a true statement of that complaint, with the proceedings thereon."
12. Chapter 13 of Army Regulation 27-10 applies to application for relief under Article 69, UCMJ.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends her rights were violated by psychological abuse. She also contends her chain of command had a personal grudge against her. However, there is no evidence of record and she provided no evidence to support these contentions.
2. Her contention that Article 138 of the UCMJ protects a Soldier's right to complain and request correction of a grievance against his or her commander was noted. However, there is no evidence she made a complaint against her commanding officer.
3. She contends her service record was good and she should have been separated because of unsatisfactory performance and received an honorable discharge. However, the governing regulation states that abuse of illegal drugs is serious misconduct, not unsatisfactory performance.
4. Although she contends she was not properly evaluated to be fit enough to serve on active duty, the medical evidence shows she was found qualified for service on 10 June 2008.
5. Her record of service includes marijuana and cocaine abuse. As a result, her record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel and is insufficiently meritorious to warrant an honorable discharge.
6. Her administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize her rights. She had an opportunity to submit a statement in which she could have voiced her concerns and she failed to do so. The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.
7. 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 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) AR20110017059
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ABCMR Record of Proceedings (cont) AR20110017059
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