IN THE CASE OF:	  

		BOARD DATE:  8 November 2012

		DOCKET NUMBER:  AR20120008094 


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 discharge under other than honorable conditions to honorable.

2.  The applicant states she was diagnosed with sarcoidosis while she was assigned to Fort Gordon, GA, a disease she believes she contracted while serving in Korea.  Her doctors told her the sarcoidosis was "only" spots on her lungs, she would most likely develop a pigmentation of the skin, and she should not feel overly concerned about her diagnosis.  He doctors treated her condition as if it was not a legitimate illness.  She began to worry about her diagnosis and became very depressed at times which began to have an increasingly negative effect on her personal and professional life.

3.  She states she attended a party in the local community and having an impaired mindset due to her health problems, she tried cocaine for the first and only time.  Shortly thereafter she tested positive for cocaine use.  After testing positive for cocaine she was told informally that she would be reduced in grade to E-1 and discharged.  She was not offered any options or legal counsel.  She was removed from her duty section and given odd jobs over the next few months.  One weekend she was given permission to go home and she returned 1 day late. 
She was absent without leave (AWOL) because she just stopped caring.  Eventually she was discharged under other than honorable conditions.

4.  Since being discharged her sarcoidosis has had an increasingly negative impact on her pancreas, heart, kidneys, and personal appearance due to random pigmentation.  Upgrading her character of service to honorable will have a significant effect on her ability to obtain benefits for her health problems.

5.  The applicant provides a self-authored statement and 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 enlisted in the Regular Army on 6 August 1980 and held military occupational specialty 73C (Finance Specialist).  During her period of service she was assigned to Fort Rucker, AL; Korea; and Fort Gordon, GA.

3.  On 17 June 1986, she accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without authority from 9 June 1986 to 11 June 1986 and failing to obey the lawful order of a senior noncommissioned officer to return to work on 10 June 1986.

4.  Her record contains a DA Form 4126-R (Bar to Reenlistment Certificate), dated 23 July 1986, wherein her commander stated:

	a.  It is Headquarters, Department of the Army, policy that only personnel of high moral character, professional competence, and demonstrated adaptability to the professional Soldiers' moral code will be extended the privilege of reenlistment.  Based upon the applicant's recent conduct, it is his opinion that she does not meet the proceeding Department of the Army policy guidance and therefore should be barred from reenlistment.

	b.  This opinion is supported by the whole-person concept and the fact that the applicant tested positive on a drug urinalysis test conducted recently by the company.  Therefore, this bar to reenlistment is considered justified and warranted in accordance with the provisions of Army Regulation 601-280 (Army Reenlistment Program) for unsuitability.

5.  On 23 July 1986, she signed the DA Form 4126-R acknowledging she had been furnished a copy of her commander's recommendation to bar her from further reenlistment, had been counseled and advised on the basis for the bar to reenlistment, and did not desire to make a statement in her own behalf.

6.  On 30 July 1986, she accepted NJP under the provisions of Article 15 of the UCMJ for the wrongful use of cocaine.

7.  The bar to reenlistment was approved on 6 August 1986.

8.  Her record contains two DA Forms 4187 (Personnel Action) which show her duty status change from:

* present for duty (PDY) to AWOL on 3 September 1986
* AWOL to PDY on 5 September 1986

9.  Her DA Form 2-1 (Personnel Qualification Record) shows she was AWOL during the following periods:

* 3 to 4 September 1986
* 9 to 11 September 1986

10.  There were no medical records available for review in this case.

11.  Her record does not contain her separation packet; however, it does contain a duly-constituted DD Form 214 which shows she was discharged under other than honorable conditions on 17 October 1986 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b, for misconduct – pattern of misconduct.  This form shows she completed 6 years, 2 months, and 8 days of net active service, 11 months and 16 days of which were credited as foreign service, with 4 days of lost time.

12.  There is no indication she applied to the Army Discharge Review Board for an upgrade of her discharge within that board's 15-year statute of limitations.

13.  Army Regulation 635-200, paragraph 14-12b, establishes policy and prescribes procedures for separating personnel for misconduct.  Soldiers are subject to separation per this section for a pattern of misconduct consisting of discreditable involvement with civil or military authorities and conduct prejudicial to good order and discipline.  Discreditable conduct and conduct prejudicial to good order and discipline includes conduct violative of the accepted standards of personal conduct found in the UCMJ, Army regulations, the civil law, and time-honored customs and traditions of the Army.  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.

14.  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.

15.  Army Regulation 635-200, paragraph 3-7b, states 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 ABCMR does not grant requests for the correction of records 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 correction to his or her military records.

2.  The applicant's record does not contain her separation packet; however, her record contains a duly-constituted DD Form 214 that shows she was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, paragraph 14-12b, due to misconduct – a pattern of misconduct.

3.  There is no evidence available and she has provided none to show she was not properly and equably discharged in accordance with the regulations in effect at the time, or that all requirements of law and regulations were not met, or her rights were not fully protected throughout the separation process.  She provides no medical evidence for review.  Absent such evidence, regularity must be presumed in this case.

4.  Based on her record of misconduct, her service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  And is therefore, she is not entitled to an honorable discharge.

5.  In view of the foregoing, there is no basis for granting relief in this case.
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)                                         AR20120008094



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ABCMR Record of Proceedings (cont)                                         AR20120008094



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