IN THE CASE OF:	  

		BOARD DATE:	  11 October 2012

		DOCKET NUMBER:  AR20120007030 


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 under other than honorable conditions discharge.

2.  The applicant states:

* Her service in the Army was honorable until she deployed to Kuwait/Iraq; her morale dropped due to her post-traumatic stress disorder (PTSD)
* She brought the issue up with her chain of command but she was only prescribed medication
* Shortly thereafter, her unit wrongfully accused her of using marijuana and started separation action against her
* The doctors instructed her to continue with her mental health classes which she never got to finish
* She began feeling pressed and suicidal because she was accused of something she did not do
* The first sergeant even stated there was insufficient evidence to prosecute her and that she had no prior misconduct
* She was given separation paperwork to sign in Iraq; she did not know much about the separation
* She requested counsel but all she got was instructions where to sign or initial on the separation memorandum
* Upon separation, she went straight to the Department of Veterans Affairs where she was diagnosed with PTSD
* 
She has since gone into deeper depression but cannot get treatment due to the character of her service

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Patient appointment list
* Notification of separation action
* Laboratory results form
* Report of Medical Examination
* Report of Medical History

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 28 September 2004.  She completed training and she was awarded military occupational specialty 92F (Petroleum Supply Specialist).

2.  The highest rank/grade she attained during her military service was private first class (PFC)/E-3.  She served in Korea with the 305th Quartermaster Company, 71st Corps Support Battalion.

3.  Her record further shows she served in Kuwait/Iraq from 1 August 2005 to 6 August 2006.  Her record also shows she was awarded the National Defense Service Medal, Iraq Campaign Medal, Global War on Terrorism Service Medal, Korea Defense Service Medal, Army Service Ribbon, and the Overseas Service Ribbon.

4.  On 2 December 2005, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana between on or about 29 September 2005 and on or about 7 October 2005.

5.  On 11 July 2006, agents of the U.S. Army Criminal Investigation Command conducted an investigation into allegations of the applicant’s wrongful distribution of a controlled substance, indecent acts, indecent assault, and failure to obey a general order.  The investigation revealed that on or about 2 July 2006, she (the applicant) provided two Soldiers with a prescription drug called Xanax, and provided alcohol for consumption resulting in one female Soldier losing consciousness.  While the Soldier was unconscious, the applicant proceeded to perform indecent sexual acts on the female Soldier while a male Soldier involved performed indecent sexual acts on her.

6.  On 23 July 2006, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against her in accordance with Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), chapter 14, section III, paragraph 14-12(c) for misconduct-commission of a serious offense.  The specific reasons are stated as her illegal use of marijuana between 29 September and 7 October 2005; wrongful distribution of Xanax on 2 July 2006; possession of alcohol; violation of General Orders Number 1 in Iraq; and commission of an indecent act and an indecent assault upon another Soldier.  The applicant acknowledged receipt of the notification memorandum on the same date.  She was also advised of her right to consult with counsel prior to making any election of rights.

7.  On 28 July 2006, having consulted with counsel, she was advised of the basis for the contemplated separation for misconduct and its effect, of the rights available to her and the effect of any action taken by her in waiving her rights, and of the type of discharge and its effect on further enlistment or reenlistment.  The applicant:

* waived consideration of her case by and personal appearance before an administrative separation board
* elected not to submit a statement in her own behalf
* acknowledged she understood that she could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to her
* acknowledged that as a result of issuance of a discharge under other than honorable conditions, she could be ineligible for many or all benefits as a veteran under Federal and State laws

8.  Subsequent to this acknowledgement, the applicant’s immediate commander initiated separation action against her in accordance with Army Regulation
635-200, paragraph 14-12(c) for misconduct.  The commander recommended the applicant be separated with an under other than honorable conditions discharge.

9.  On 28 July 2006, the applicant’s intermediate and senior commanders recommended approval of the applicant’s discharge in accordance with paragraph 14-12(c) of Army Regulation 635-200 with an under other than honorable conditions character of service.

10.  On 31 July 2006, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200, paragraph 14-12c by reason of 

misconduct - commission of a serious offense and directed the applicant be issued an Under Other Than Honorable Conditions Discharge Certificate and reduced to private (PV1)/E-1.  On 18 August 2006, the applicant was accordingly discharged.

11.  The DD Form 214 she was issued confirms she was discharged by reason of misconduct with a character of service of under other than honorable conditions.  This form further confirms she completed 1 year, 10 months, and
21 days of creditable active service.

12.  There is no indication in the available records that the applicant was diagnosed with PTSD or any other medical condition during her military service.

13.  The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of her discharge.  However, on 10 January 2012, the ADRB found she was properly and equitably discharged.  As such, it denied her request for an upgrade of her discharge.

14.  The applicant submitted a DD Form 2808 (Report of Medical Examination), dated 3 November 2005, that shows she was fully qualified for retention.

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

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  Army policy states that an under other than honorable conditions discharge is normally considered appropriate for a Soldier discharged for patterns of misconduct.

	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.

	c.  Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that her discharge should be upgraded because she suffered from PTSD due to her military service in Iraq and the evidence she submitted was carefully considered; however, there is insufficient evidence to support her claim.  There is no evidence that the applicant's use of illegal drugs (marijuana) and then distribution of Xanax or indecent assault was caused by any medical condition.

2.  The evidence of record shows the applicant committed serious offenses. Accordingly, her commander initiated separation action against her.  All requirements of law and regulation were met and the rights of the applicant appear to have been fully protected throughout the separation process.  The evidence of record further shows the applicant’s discharge was appropriate because the quality of her service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel. 

3.  There is no evidence of record and she provides none to support her contention that she was wrongfully or unjustly discharged.  The NJP she received coupled with her subsequent misconduct of distributing a controlled substance, violating a general order that prohibited consumption of alcohol, and indecent sexual acts clearly show the quality of her service was diminished below that meriting an honorable or a general discharge.

4.  The ABCMR does not correct records for the purpose of establishing entitlements to other programs or benefits.  Based on her record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is no basis for upgrading her discharge to either an honorable or a general 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)                                         AR20120007030



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ABCMR Record of Proceedings (cont)                                         AR20120007030



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