DOCKET NUMBER:  AR20120004678 


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, in effect, she is homeless and does not have access to many of the veterans benefits which could improve her situation.

3.  The applicant provides her DD Form 214 (Certificate of Release or Discharge from Active Duty) and an undated letter from the Department of Veterans Affairs (VA).

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 contains a DD Form 1966 (Record of Military Processing - Armed Forces of the United States), dated 19 January 1987, wherein she checked a block indicating she has previously used narcotics, LSD (Lysergic acid diethylamide), or other dangerous drugs.  This block was clarified with the statement "the applicant has tried marijuana for experimental reasons only."

3.  The applicant enlisted in the Regular Army on 12 May 1987.  She completed basic combat and advanced individual training and was awarded the military occupational specialty 91A (Medical Specialist).  She was assigned to Company A, 7th Medical Battalion, Fort Ord, CA, from 30 October 1987 to 4 December 1989.

4.  There is no evidence in her military record to show she suffered from Military Sexual Trauma (MST) or Post Traumatic Stress Disorder (PTSD). 

5.  Her record contains a Standard Form (SF) 513 (Medical Record - Consultation Sheet) showing she was seen by the Chief of Inpatient Psychiatry, on 18 August 1989 and provisionally diagnosed with cocaine syndrome.

6.  The SF 513 further shows she was referred to and seen by a certified Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) counselor who stated the applicant had a severe problem with cocaine and a significant history of drug abuse.  The counselor recommended the applicant be placed on a track II treatment plan if she was going to be retained on active duty.  The counselor further indicated the applicant stated:

* She began using crack upon returning from Panama the first week of July
* All she thought about was crack and how she could get it
* She was using daily until 16 August 1989
* She was addicted to cocaine for 2 years prior to service

7.  Her record shows she accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 
26 September 1989 for being absent without leave (AWOL) from 15 to 17 August 1989 and from 19 to 20 September 1989.

8.  Her record contains a DA Form 5180-R (Urinalysis Custody and Report Record) showing her urine specimen was collected on 25 September 1989 and it was tested on 2 October 1989.  The test results show her urine tested positive for cocaine.

9.  Her record contains a DA Form 3822-R (Report of Mental Status Evaluation), dated 7 November 1989, shows she displayed normal behavior, was fully alert, fully oriented, had a clear thinking process, her thought content was normal and she had a good memory.  It was the medical official's impression that she had the mental capacity to understand and participate in proceedings, she met retention standards.  Based on the medical official's assessment she was psychiatrically cleared for any administrative action deemed appropriate by her command.

10.  On 8 November 1989, her immediate commander notified her of his intent to initiate separation action against her in accordance with chapter 14-12c (Commission of a Serious Offense-Abuse of Illegal Drugs) of Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), for two periods of AWOL and wrongful use of cocaine.

11.  On 8 November 1989, she acknowledged receipt of the commander's intent to separate her and she was advised of the basis for the contemplated separation action, the type of discharge she could receive, and of the procedures/rights available to her.  

12.  On 8 November 1989, she consulted with legal counsel and was advised 
of the type of discharge she could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to her.  She acknowledged that she understood she could encounter substantial prejudice in civilian life if a general discharge was issued to her.  She did not elect to submit a statement on her own behalf.

13.  Her record shows she accepted NJP under the provisions of Article 15 of the UCMJ on 9 November 1989 for the wrongful use of cocaine between 25 August 1989 and 25 September 1989.

14.  On 17 November 1989, the separation authority approved her discharge action under the provisions of chapter 14-12c of Army Regulation 635-200 and directed she be discharged with a general characterization of service.  Accordingly, she was discharged on 4 December 1989.  

15.  Her DD Form 214 shows she was discharged in accordance with Army Regulation 635-200, paragraph 14-12c, by reason of "Misconduct-Abuse of Illegal Drugs" with a characterization of service of general under honorable conditions.  This form further confirms she completed a total of 2 years, 6 months, and 22 days of net active service.  


16.  She provided an undated letter from the VA which stated she denied a history of drug abuse prior to entering military service.  During her military service she experienced MST and after her MST incident she reported using drugs to deal with her feelings.  She was discharged from military service in 1989 with a general characterization of service and told she could apply for an honorable discharge in 6 months.  The VA has provided this letter to substantiate the fact that her substance abuse history, while serving in the military, was her way of coping with the after affects of PTSD related to MST.

17.  There is no indication she applied to the Army Discharge Review Board for an upgrade of her discharge within its 15-year statute of limitations.

18.  MST is the term used by the VA to refer to experiences of sexual assault or repeated, threatening acts of sexual harassment which occurs while the victim was serving on active duty or active duty for training.  The definition of MST used by the VA is "psychological trauma, which in the judgment of a VA mental health professional, resulted from a physical assault of a sexual nature, battery of a sexual nature, unwanted sexual touching or grabbing, threatening, offensive remarks about the victim's body or sexual activities, threatening and unwelcome sexual advances, or sexual harassment.  In more concrete terms, MST includes any sexual activity where a victim is involved against his or her will.  The victim may have been pressured into sexual activities, threatened with negative consequences for refusing to go along, it may have been implied that the victim would get faster promotions or better treatment in exchange for sex, the victim may not have been able to consent to sexual activities, or the victim may have been physically forced into sexual activities.

19.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14-12c establishes policy and prescribes procedures for separating members for commission of a serious offense.  Abuse of illegal drugs is serious misconduct.  Separation action normally will be based upon commission of a serious offense.  However, relevant facts may mitigate the nature of the offense.  Therefore, a single drug abuse offense may be combined with one or more minor disciplinary infractions of incidents of other misconduct and processed for separation as appropriate.  First-time offenders, grades E-1 through E-4 may be processed for separation as appropriate.  "Processed for separation" means that separation action will be initiated and processed through the chain of command to the separation authority for appropriate action.  The immediate and intermediate commanders will recommend separation or retention.  Recommendation will be made as to characterization of service.  The 

separation reason in all separations authorized by this paragraph will be "misconduct abuse of illegal drugs."  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.

20.  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 contends her discharge should be upgraded because she is homeless and does not have access to many of the benefits which could improve her situation.  Additionally, the letter from the VA indicates her drug use started while she was in the military as a result of MST and PTSD.

2.  The available evidence does not show the applicant suffered from an MST incident or PTSD.

3.  The available evidence shows that when she enlisted she admitted to marijuana use and she later admitted to being addicted to cocaine 2 years prior to enlistment.

4.  She tested positive for the use of cocaine.  She knowingly and wrongfully made the choice to use an illegal drug.  Testing positive for illegal drug use is a punishable offense.  In addition to illegal drug use, her records contain a history of NJP for being AWOL.

5.  Based on her record of misconduct, 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.

6.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or other benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.


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)                                         AR20120004678





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ABCMR Record of Proceedings (cont)                                         AR20120004678



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