IN THE CASE OF:	  

		BOARD DATE:	  31 January 2013

		DOCKET NUMBER:  AR20120012800 


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 (GD).  

2.  The applicant states, in effect, she was not offered help through substance abuse treatment.  She claims that had she been allowed to stay in the Army she would now have 15 years of service now and she would probably retire from the service.

3.  The applicant provides miscellaneous documents in support of her request.  

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.  After prior service in the U.S. Army Reserve (USAR), the applicant enlisted in the Regular Army on 23 August 1983.  She was trained in and awarded military occupational specialty 52C (Utilities Equipment Repairer) and specialist four/E-4 is the highest rank she attained while serving on active duty.  Her record documents no acts of valor or significant achievement.  

3.  The applicant’s disciplinary history includes her acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for abusing illegal drugs on 7 February 1986.  

4.  On 10 April 1986, the unit commander notified the applicant of his intent to process the applicant for separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, by reason of misconduct – commission of a serious offense.   The unit commander specifically cited the applicant's abuse of illegal drugs as the basis for taking the contemplated separation action and recommended the applicant receive a GD.  

5.  On 10 April 1986, the applicant consulted with legal counsel and she was advised of the basis for the separation action, its effects, and of the rights available to her.  The applicant elected to submit statements in her own behalf.  In her statement she indicated she recognized she made a mistake and that she wanted to reenlist.  She further indicated that if the separation authority thought discharge was appropriate, she asked to be issued an honorable discharge based on her overall record of service.  

6.  On 16 May 1986, the separation authority approved the applicant's separation action under the provisions of Army Regulation 635-200, chapter 14, for misconduct – commission of a serious offense (abuse of illegal drugs.  He directed the applicant be issued a GD.  On 10 June 1986, the applicant was discharged accordingly.

7.  The DD Form 214 the applicant was issued at the time shows she held the rank/grade of SP4/E-4 and had completed 3 years, 2 months, and 21 days of total active military service.  It further shows she earned the Army Service Ribbon, Overseas Service Ribbon, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  

8.  There is no evidence indicating the applicant applied to the Army Discharge Review Board for an upgrade of her discharge within that board's 15-year statute of limitations.

9.  Army Regulation 635-200 provides the policies, standards, and procedures for the separation of enlisted personnel from the Army.  Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct 
because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.

10.  Paragraph 14-3 of the separation regulation contains guidance on characterization of service for members separated under chapter 14.  It states that an under other than honorable conditions discharge is normally appropriate for a Soldier discharged under this chapter.  The separation authority may direct a GD if such is merited by the Soldier's overall record.  It further states a characterization of honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to upgrade her GD to an honorable discharge based on the fact she never received assistance for drug abuse has been carefully considered.  However, the evidence of record shows one incident of drug abuse and there is no indication that she had a history of illegal drug use requiring drug abuse treatment.  There is no evidence she referred herself for drug abuse treatment.

2.  The evidence of record confirms the applicant received NJP for illegal drug abuse and she was separated on that basis.  Abuse of an illegal drug supported separation processing by reason of misconduct-commission of a serious offense (drug abuse).  The GD that she received was appropriate and accurately reflected the overall character of her service.  

3.  The applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and her rights were fully protected throughout the separation process.  By regulation, an under other than honorable conditions discharge is normally appropriate for a member separated by reason of misconduct.  Clearly, the applicant’s record of misconduct diminished her overall record of service below that meriting a fully honorable discharge.

4.  In view of the foregoing and absent evidence of error or injustice in the discharge process, there is an insufficient evidentiary 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 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)                                         AR20120012800



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ABCMR Record of Proceedings (cont)                                         AR20120012800



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