IN THE CASE OF:	  

		BOARD DATE:	  29 May 2012

		DOCKET NUMBER:  AR20110022601 


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 honorable.

2.  The applicant states she has never taken illegal drugs in her life.  She was an excellent Soldier who did everything well.  Someone somewhere put something in her drink.  She recently learned that her station commander was arrested for selling cocaine from his military vehicle.

3.  The applicant provides a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty).

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, a U.S. Army Reserve sergeant first class, was serving on active duty as a recruiter in the Active Guard Reserve (AGR) Program.  She had been on continuous active duty since 1981 and had no previous active duty service.

3.  During a unit drug screening on 23 December 1994, she submitted a urine sample that tested positive for a by-product of cocaine.

4.  In a 2 March 1995 mental status evaluation, the applicant's behavior was normal.  She was fully alert and oriented and displayed an unremarkable mood.  Her thinking was clear, her thought content was normal and her memory was good.  There was no significant mental illness.  The applicant was mentally responsible.  She was able to distinguish right from wrong and to adhere to the right.

5.  On 1 August 1995, she appeared with counsel before a board of officers that convened to consider her elimination from the service for use of cocaine.

6.  During the hearing, qualified technical witnesses for both the government and the applicant testified that benzoyllecgoine (BZE), the by-product of cocaine that is sought in drug testing, will spontaneously hydrolyze outside the human body.  It happens when cocaine is exposed to water.  The presence of BZE does not show the cocaine that produced it ever actually entered a human body.

7.  The expert witness for the defense was a retired Air Force colonel who had been instrumental in establishing Department of Defense standards and procedures.  He testified that about 94 percent of all paper money in the United States was contaminated with cocaine and that the applicant could have accidentally contaminated her own urine sample with cocaine from handling money.  However, when questioned about the level of the BZE in the applicant's sample, he changed course and suggested that someone, anyone, could have slipped cocaine into the applicant's food or drink.

8.  Other witnesses, including the applicant's minister and co-worker and a sister, were unequivocal in their support.  Only the AGR recruiting operations officer (who testified by telephone) had any criticism of her.  He thought she was somewhat irresponsible and could have returned to work sooner following surgery to her hand.

9.  The applicant made an unsworn statement, but voluntarily answered every question the board members asked.

10.  The board found that the applicant had used cocaine and recommended her separation with a general discharge for commission of a serious offense.

11.  The Staff Judge Advocate reviewed the record and recommended approval of the board's recommendation.

12.  The separation authority approved the board's findings and recommendation and directed her separation with a general discharge.  However, the applicant appealed the decision to the Commander, Recruiting Command, who denied her appeal and directed the same action.

13.  On 10 October 1995, the applicant was discharged under honorable conditions under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, for commission of a serious offense for drug abuse.

14.  The applicant did not apply to the Army Discharge Review Board for an upgrade of her discharge.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 deals with separation for various types of misconduct, which include drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service.  Individuals in pay grades E-5 and above must be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 may also be processed after a first drug offense and must be processed for separation after a second offense.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.

	b.  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 states she never took illegal drugs in her life.  She contends she was an excellent Soldier who did everything well.  Someone somewhere put something in her drink.  She recently learned that her station commander was arrested for selling cocaine from his military vehicle.

2.  The applicant's contentions were noted.  However, she submitted no evidence to support them.  The discharge process was conducted in accordance with applicable law and regulations and the applicant's service was appropriately characterized.

3.  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)                                         AR20110022601



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ABCMR Record of Proceedings (cont)                                         AR20110022601



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