BOARD DATE:	 6 February 2014 

		DOCKET NUMBER:  AR20130010013 


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 reconsideration of her earlier petition to the Board requesting an upgrade of her general discharge to an honorable discharge.

2.  The applicant states, in effect, through a letter to her Member of Congress (MOC):

   a.  If an award can be given to someone who is deceased, there should be no time limit to a person who is 80 percent service-connected permanent and totally disabled.  Her health in all these years was and still is her primary concern.

   b.  She volunteered for the drug test and her privacy was violated.  Everyone other than herself knew about the amount and the result of her test.  She found out from a noncommissioned officer in the female bathroom; however, no responsible party ever discussed the results with her.
   
   c.  Her assigned counsel was very incompetent.  He knew that she had taken another drug test at a civilian laboratory which was negative; however, it was never discussed or mentioned to the board.

   d.  She was told by several former Soldiers and civilian personnel that they had been searching for her to let her know that her former station commander was caught on camera selling kilos of cocaine out of his military vehicle while in uniform.  They were concerned because they felt she had received a bad deal.  

   e.  The recruiting operations office felt she was irresponsible and could have returned to work sooner; however, she had a cast on her hand and was on medical profile during the time of the hearing.  

3.  The applicant provides:

* a self-authored statement to a MOC
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Army Board for Correction of Military Records (ABCMR) Record of Proceedings Docket Number AR20110022601

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20110022601, on 29 May 2012.

2.  The applicant provides a self-authored statement to a MOC which was not previously reviewed by the ABCMR.  Therefore, it is considered new evidence and as such warrants consideration by the Board.

3.  The applicant enlisted in the U.S. Army Reserve on 20 July 1977.  She periodically reenlisted and was promoted in rank and assigned to positions of greater responsibility.  

4.  On 23 December 1994, while serving in the rank of sergeant first class on active duty as a recruiter in the Active Guard Reserve Program, she submitted a urine sample as part of a unit drug screening that tested positive for cocaine. 

5.  On 27 February 1995, the applicant was notified of initiation of separation action under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14 for misconduct; specifically the use of illegal drugs due to positive results on a urinalysis.  The commander recommended a discharge under honorable conditions.

6.  On 1 August 1995, the applicant appeared with defense counsel before an administrative separation board to determine if she should be discharged for misconduct.  The board carefully considered the evidence before it and unanimously found that the preponderance of the evidence established that the applicant committed misconduct, a commission of a serious offense - abuse of illegal drugs.  The board subsequently recommended the applicant be separated from service for misconduct and furnished a General Discharge Certificate.
7.  On 4 August 1995, the applicant and counsel appealed the board's findings to the Commander, U.S. Army Recruiting Command.  On 8 September 1995, after reviewing the separation proceedings and the appeal submitted by the applicant and her counsel, the commander directed that the applicant be separated from service with the issuance of a General Discharge Certificate. 

8.  On 10 October 1995, the applicant was discharged accordingly.  The          DD Form 214 she was issued confirms she was separated for misconduct and she was assigned a Separation Program Designator (SPD) Code of JKK (drug abuse) and a Reenlistment Eligibility Code of "3."  

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

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 deals with separation for various types of misconduct, which includes drug abuse, and states that individuals identified as drug abusers may be separated prior to their normal expiration of term of service. The regulation in effect at the time stated individuals in pay grades E-5 and above could be processed for separation upon discovery of a drug offense.  The issuance of a discharge under other than honorable conditions was normally considered appropriate.

11.  Army Regulation 635-200, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for reconsideration of her earlier petition to the Board requesting an upgrade of her general discharge to an honorable discharge has been carefully reexamined.

2.  The applicant's contentions are noted; however, she provides no evidence to support her allegation that her former station commander was caught on camera selling kilos of cocaine out of his military vehicle while in uniform or what such an action would have to do with her testing positive for cocaine. 

3.  She provides insufficient evidence to support her claim that her defense counsel was incompetent or that she had taken another drug test at a civilian laboratory which tested negative and was never discussed or mentioned to the board.  While the applicant may have conducted an independent urinalysis which subsequently tested negative for drugs, the test would not have served to invalidate the positive result of her earlier test.  The urinalysis provided ample evidence for the commander to conclude beyond a reasonable doubt that the applicant knowingly used cocaine and he had every right to discharge her upon receipt of her positive test for cocaine.  

4.  In addition, she provides insufficient evidence to support her contention that she volunteered for the drug test and that her privacy was violated at any time.  

5.  The applicant states her office felt she was irresponsible and she appears to infer that because she was on medical profile during the time of the hearing the discharge process was in some way flawed or unjust; however, there is no evidence in the applicant's record and the applicant has provided insufficient evidence to support this implied contention.
	 
6.  The applicant's offense was an act of misconduct which warrants a less than fully honorable discharge.  Evidence shows all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

7.  Based on her record of indiscipline, the applicant's 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 to amend the decision of the ABCMR set forth in Docket Number AR20110022601, dated 29 May 2012.



      ___________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)                                         AR20130010013





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ABCMR Record of Proceedings (cont)                                         AR20130010013



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