IN THE CASE OF:	 

		BOARD DATE:	  10 April 2014

		DOCKET NUMBER:  AR20130014207 


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 that her general, under honorable conditions discharge be upgraded to honorable.

2.  The applicant states she was under the influence of drugs because of her post traumatic stress disorder (PTSD) and military sexual trauma (MST).  She no longer has any issues with drugs.  She is in recovery for MST.  She was going to make a career of the U.S. Army until she was raped.

3.  The applicant provides:

* A Department of Veterans Affairs (VA) Form 21-0781 (Statement in support of Claim for PTSD)
* VA Form 21-4138 (Statement in Support of Claim)

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 20 October 1981, the applicant enlisted in the Regular Army.  She completed her initial training as an administrative specialist.

3.  Records show the applicant advanced through the ranks and was promoted to sergeant on 5 September 1985.

4.  On 19 June 1987, the applicant accepted nonjudicial punishment (NJP) for the wrongful use of marijuana, as evidenced by biochemical testing on or about 21 April 1987.  Her appeal of the NJP was denied.

5.  On 8 July 1987, the applicant's company commander notified her that he was intending to take action to effect her discharge for misconduct.  The commander cited the applicant's use of marijuana as the basis for this action.

6.  On 8 July 1987, the applicant’s commander recommended separation from the service under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct, abuse of illegal drugs.

7.  On 16 July 1987, the applicant consulted with counsel concerning her rights.  She requested consulting counsel.  She did not indicate whether she submitted a statement in her own behalf.

8.  On 15 August 1987, the appropriate authority approved the recommendation for discharge and directed issuance of a general discharge.

9.  On 31 August 1987, the applicant was accordingly discharged.  She had completed 5 years, 10 months, and 12 days of creditable active duty service.

10.  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 the commission of a serious offense.

	b.  This regulation further provides that the misconduct is considered a commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Uniform Code of Military Justice (UCMJ).
	c.  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.

11.  Under the UCMJ, the maximum punishment allowed for the wrongful use of marijuana is 5 years confinement at hard labor and a punitive discharge.

DISCUSSION AND CONCLUSIONS:

1.  The record shows the applicant accepted NJP for the use of marijuana.

2.  Unfortunately, there is no evidence of record showing that the applicant had suffered any traumatic event, such as rape.  There is no evidence of record showing that her use of marijuana was the result of any improper or criminal action by any person or persons.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize her rights.

4.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

5.  Based on her record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  This misconduct rendered her service unsatisfactory. Therefore, she is not entitled to an upgrade of her discharge.

6.  In view of the foregoing, there is no basis for granting the applicant's request to upgrade her discharge.

7.  In regard to the applicant’s contention that she was raped, although a number of years have passed she may desire to now report the incident to the DoD Safe Helpline at (877) 995-5247.  The Safe Helpline’s staff and volunteers provide 24/7 response capability and may be able to assist her further.



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)                                         AR20130014207





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ABCMR Record of Proceedings (cont)                                         AR20130014207



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