BOARD DATE:	  16 July 2013

		DOCKET NUMBER:  AR20120022336 


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 under honorable conditions discharge to an honorable discharge.  She also requests, in effect, correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show her Reserve obligation.  

2.  She states she believes a change is warranted because the negative effects of not receiving educational or Department of Veterans Affairs (VA) benefits far outweigh the reasons for the discharge.  She states the discharge was inequitable.  She also states she was told her discharge would be automatically upgraded after 6 months.  

3.  She provides no documentation 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.  On 19 October 1990, the applicant enlisted in the U.S. Army Reserve in the Delayed Enlistment Program (DEP).  On 26 June 1991, she enlisted in the Regular Army for a period of 2 years and 22 weeks.  

3.  A DA Form 4187 (Personnel Action), dated 28 February 1992, shows she was reduced from pay grade E-2 to pay grade E-1 based on nonjudicial punishment (NJP) she received under the provisions of Article 15, Uniform Code of Military Justice, on 24 February 1992.  The record does not show the reason she received the NJP.

4.  On 21 October 1992, she accepted NJP for wrongfully using marijuana.  

5.  A Memorandum for Record (MFR), dated 22 October 1992, signed by an Alcohol and Drug Abuse Counselor and a Clinical Director, U.S. Army Combined Arms Command and Fort Leavenworth, Fort Leavenworth, KS, shows the applicant had two urinalysis results that were positive for tetrahydrocannabinol (THC), the active component in marijuana.  The MFR stated the two positive urinalysis results dictated the command take appropriate action.  

6.  On 29 October 1992, the applicant's commander notified her she was initiating action to separate her from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, based on her second positive urinalysis result.  Her commander informed her she was recommending a general under honorable conditions discharge and informed her of her rights.  

7.  On 2 November 1992, she was advised by counsel of the basis for her contemplated separation and its effects, of the rights available to her, and of the effect of any action taken her in waiving those rights.  

8.  She elected to submit statements in her own behalf, and she requested that she receive an honorable discharge.  She acknowledged she understood she could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to her.  

9.  Any statements she submitted in her own behalf are not contained in the available records.  

10.  On 5 November 1992, she was psychiatrically cleared for any administrative action deemed appropriate by her command, to include separation from the service under the provisions of Army Regulation 635-200, chapter 14.  

11.  On 4 December 1992, the separation authority approved her discharge under the provisions of Army Regulation 635-200, chapter 14, and directed she receive a General Discharge Certificate.

12.  On 11 December 1992, she was discharged in accordance with the separation authority's decision.  She completed 1 year, 5 months, and 16 days of net active service.  

13.  On 26 March 1999, the President, Army Discharge Review Board, notified her her request for a change in the character of and/or reason for her discharge had been denied.

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

	a.  Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration term of service.  Individuals in pay grades E-5 and above must be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 may also be processed after a first drug offense and must be processed for separation after a second offense.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.

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

DISCUSSION AND CONCLUSIONS:

1.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant submits an application to either the Army Discharge Review Board or the ABCMR requesting change in discharge.  Changes may be warranted if the ABCMR determines that the characterization of service or the reason for discharge or both were improper or inequitable.  
2.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making an individual eligible for educational or VA benefits.

3.  The governing regulation required that those in pay grades below E-5 be processed for separation after a second drug offense.  The evidence shows the applicant was properly and equitably discharged in accordance with the applicable regulations, all requirements of law and regulation were met, and her rights were fully protected throughout the separation process.

4.  Based on her record of indiscipline, 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.

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)                                         AR20120022336





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ABCMR Record of Proceedings (cont)                                         AR20120022336



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