IN THE CASE OF:	   

		BOARD DATE:	  24 September 2013

		DOCKET NUMBER:  AR20130001570 


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 change of her narrative reason for separation and upgrade of her general discharge to an honorable discharge.

2.  The applicant states there is no evidence of abuse or use of illegal drugs during her period of service.  She contends she needs an honorable discharge in order to apply for government and federal employment.

3.  The applicant provides no additional evidence.

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 27 February 1989.  She was awarded military occupational specialty 76C (Equipment Records and Parts Specialist).

3.  The applicant's record contains documents related to a U.S. Army Criminal Investigation Command (CID) investigation wherein the applicant was suspected of distributing and wrongfully possessing cocaine.  These documents show:

	a.  On 8 April 1992, a CID Form 36 (Field Test Analysis of Suspected Controlled Substances) shows a yellow-in-color rock-type substance in the applicant's possession tested positive as a controlled substance.

	b.  On 4 June 1992, a Forensic Chemist determined that an examination of a grayish white powder in the applicant's possession revealed the presence of methamphetamine, a controlled substance.

	c.  On 6 January 1993, a CID report disclosed the applicant and another Soldier sold .140 grams of methamphetamine to a CID source and a semi-covert member of the Drug Suppression Team for $25.00 in CID funds.

4.  On 17 March 1993, the applicant was notified by her unit commander that separation action was being initiated against her under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph
14-12c, for commission of a serious offense, possession and distribution of methamphetamine while assigned to the 164th Chemical Company, Fort Irwin, CA on or about 8 April 1992.  The applicant acknowledged receipt of the notification on the same date.

5.  On 25 March1993, she consulted with legal counsel and she was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to her, and the effect of any action taken by her in waiving her rights.  Subsequent to receiving this counseling, the applicant completed her election of rights, requested consulting counsel, and elected to submit statements in her own behalf.  On 6 April 1993, she declined the opportunity to have counsel, but elected to submit statements in her own behalf.  No statements were found in the record.

6.  On 18 April 1993, the separation authority approved the discharge action under the provisions of Army Regulation 635-200, paragraph 14-12c for commission of a serious offense, directed the applicant not be transferred to the Individual Ready Reserve, and that the applicant be issued a general discharge.


7.  On 17 June 1993, she was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of "Misconduct/Abuse of Illegal Drugs," with a general discharge.  She completed 4 years, 3 months, and 21 days of creditable active service and attained the rank/grade of specialist (SPC)/E-4.  Her DD Form 214 shows she was assigned a separation code of "JKK."

8.  The Army Discharge Review Board denied her request for an upgrade of her discharge on 14 March 1997.

9.  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 include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  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.

	b.  Paragraph 14-12c of this regulation prescribes the specific circumstances that warrant discharge for the commission of a serious military or civilian offense to include AWOL, desertion, and abuse of illegal drugs.

	c.  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.

10.  Army Regulation 635-5-1 (Separation Program Designator (SPD)) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states that the SPD code JKK is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct – abuse of illegal drugs.


DISCUSSION AND CONCLUSIONS:

1.  The applicant requests change of her narrative reason for separation and upgrade of her general discharge to an honorable discharge.

2.  The available evidence shows a CID investigation found the applicant wrongfully possessed and distributed methamphetamine to a CID source.  As a result she was issued a general discharge due to misconduct - abuse of illegal drugs.  This is a clear violation of the Army's established drug policy that compromised the trust and confidence placed in her as a Soldier.  Her overall service record does not warrant an upgrade of her general discharge to an honorable discharge.

3.  Her separation code and narrative reason for separation were assigned based on the fact she was discharged under the provisions of Army Regulation
635-200, chapter 14-12c, due to her misconduct for drug abuse.  Absent her commission of this offense, there was no fundamental reason to process her for discharge.  The only valid narrative reason for separation permitted under that paragraph is "misconduct – abuse of illegal drugs" and the appropriate separation code associated with this discharge is "JKK," which is properly reflected on her DD Form 214.

4.  In view of the foregoing, 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)                                         AR20130001570



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ABCMR Record of Proceedings (cont)                                         AR20130001570



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