BOARD DATE:	  7 August 2012

		DOCKET NUMBER:  AR20120001988 


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 that her under honorable conditions discharge be upgraded to honorable.

2.  The applicant makes no statement.

3.  The applicant provides no additional documentation.

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.  On 23 September 1980, the applicant enlisted in the Regular Army.    She completed her initial training and was awarded military occupational specialty 75D (Personnel Records Specialist).

3.  On 19 September 1985, the applicant was promoted to sergeant, pay grade E-5.

4.  On 17 January 1989, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for wrongful use of cocaine.  Her subsequent appeal of the NJP was denied.

5.  On 7 March 1989, the applicant's commander initiated action to separate her from the service due to the commission of a serious offense.  The commander based this action on the applicant's NJP discussed above.

6.  On 9 March 1989, the applicant consulted with counsel concerning her rights.  She requested consideration of her case by an administrative separation board and to appear before such board with consulting counsel.

7.  On 16 March 1989, at a mental status evaluation, the applicant's behavior was found to be normal.  She was fully alert and oriented and displayed an unremarkable mood.  Her thinking was clear, her thought content normal and her memory good.  There was no significant mental illness.  The applicant was found to be mentally responsible.

8.  On 30 March 1989, the applicant’s commander recommended separation from the service under the provisions of Army Regulation 635-200, chapter 14, for the commission of a serious offense by wrongful use of cocaine.

9.  On 28 June 1989, the applicant submitted a request for a conditional waiver.  She voluntarily waived consideration of her case by an administrative discharge board contingent upon her receiving an under honorable conditions characterization of service.

10.  On 11 July 1989, the appropriate authority approved the request for a conditional waiver and the recommendation for discharge and directed that the applicant be issued a General Discharge Certificate, under honorable conditions.

11.  Accordingly, on 31 July 1989, the applicant was discharged under honorable conditions.  She completed 8 years, 10 months, and 8 days of creditable active duty service.

12.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of her discharge.

13.  Under the UCMJ, the maximum punishment allowed for the wrongful use of cocaine is a punitive discharge and confinement for 5 years.
14.  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 the commission of a serious offense that could result in a punitive discharge.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

15.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her under honorable conditions discharge should be upgraded to honorable, but does not offer any supportive argument.

2.  The record shows the applicant received NJP for the wrongful use of cocaine.  This is clearly a serious offense.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize her rights.

4.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

5.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, she is not entitled to an honorable discharge.

6.  In view of the above, the applicant's request should be denied.









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)                                         AR20120001988





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ABCMR Record of Proceedings (cont)                                         AR20120001988



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