IN THE CASE OF:	  

		BOARD DATE:	    24 April 2014

		DOCKET NUMBER:  AR20130014308 


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 under honorable conditions (general) discharge. 

2.  The applicant states she was a victim of military sexual trauma due to a traumatic event that took place at Fort Jackson, SC, during basic combat training. 

3.  The applicant does not provide any 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's records show she enlisted in the U.S. Army Reserve on 4 April 1986.  
3.  She entered active duty for training (ADT) on 19 August 1986.  She completed basic combat training at Fort Jackson, SC, and advanced individual training at Fort Sam Houston, TX.  She was awarded of military occupational specialty 91E (Dental Specialist).  She was released from ADT on 22 January 1987. 

4.  She enlisted in the Regular Army on 22 September 1987.  She served in Korea from 5 November 1987 to 4 November 1988.  She was awarded or authorized the Army Service Ribbon and Overseas Service Ribbon.

5.  On 1 August 1988, in Korea, she accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to her appointed place of duty. 

6.  Upon completion of her overseas tour, she was reassigned to Fort Hood, TX.  While at Fort Hood, TX, she was frequently counseled by members of her chain of command for various infractions, including:

* unauthorized or improper uniform wear
* multiple instances of failure to report
* various misconduct
* disobeying orders
* dishonored checks

7.  On 10 April 1989, at Fort Hood, TX, she accepted NJP under the provisions of Article 15 of the UCMJ for twice absenting herself from her appointed place of duty and disobeying a lawful order from a noncommissioned officer.  Her punishment consisted of a reduction to private/E-1. 

8.  On 20 June 1989, she participated in a unit urinalysis and her urine sample tested positive for cocaine and/or marijuana. 

9.  On 5 August 1989, she accepted NJP under the provisions of Article 15 of the UCMJ for wrongfully using illegal drugs. 

10.  On 29 August 1989, the applicant's immediate commander notified her of his intent to initiate separation action against her for misconduct – commission of a serious offense – in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c.  The immediate commander cited the applicant's positive urinalysis, being disruptive to good order and not obeying orders given by a noncommissioned officer.  The immediate commander recommended a discharge under other than honorable conditions.
11.  On 30 August 1989, the applicant acknowledged receipt of the commander's intent to separate her.  She consulted with legal counsel and was advised of the basis for the contemplated separation action for misconduct, the type of discharge she could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to her.  She waived consideration of her case by an administrative separation board and/or personal appearance before a board contingent upon receiving a characterization of service no less than general.  She also elected to submit a statement in her own behalf.  She acknowledged she:

* understood she could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to her
* understood she could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of a discharge under other than honorable conditions

12.  In her statement, she indicated she was suffering from depression and stress caused by an unexpected pregnancy, inability to adapt to the military life, and a 12-month tour in Korea.  She added that she was unable to cope because she was incapable of communicating her feelings of disorientation and anxiety.  She was fearful of her future and the consequences of her unplanned pregnancy. She asked for leniency so that she could get her life straight and provide a secure future for her child.

13.  The applicant's immediate commander initiated separation action against her due to misconduct, in accordance with Army Regulation 635-200, paragraph    14-12c.  He noted the applicant's use of illegal drugs, habitual tardiness, disruption, and indiscipline. 

14.  Her intermediate and senior commander recommended approval with her service characterized as under honorable conditions (general).

15.  On 10 September 1989, subsequent to a review for legal sufficiency, the separation authority approved the applicant's discharge, with her service characterized as under honorable conditions (general).  The applicant was discharged accordingly on 22 September 1989.  

16.  Her DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms she was discharged for misconduct - drug abuse, under the provisions of Army Regulation 635-200, chapter 14, with her service characterized as under honorable conditions (general).  She completed 2 years and one day of creditable active military service. 

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

18.  There are no Military Police (MP) reports or U.S. Army Criminal Investigation Command (CID) Report of Investigation (ROI) confirming the sexual assault.  Likewise, there are no service medical records confirming she was subjected to such assault and/or was seen by medical authorities. 

19.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action is will be taken to separate a member for misconduct when it was 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. 

20.  Paragraph 3-7a of Army Regulation 635-200 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 records show she committed a serious offense in that she wrongfully used illegal drugs.  Accordingly, her chain of command initiated separation action against her.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

2.  Her service records do not contain and she did not provide any MP reports or CID ROI confirming the sexual assault.  Likewise, there are no service medical records and she provides none confirming she was subjected to such assault and/or was seen by medical authorities. 

3.  Her discharge was appropriate because the quality of her service was not consistent with acceptable personal conduct and performance by Army personnel.  Her misconduct and failure to respond positively to counseling by members of her chain of command diminished the quality of her service.

4.  Based on her multiple instances of NJP, illegal drug use, and extensive history of negative counseling, the applicant's service was not satisfactory and insufficiently meritorious to warrant an honorable discharge.  Therefore, she is not entitled to the 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)                                         AR20130014308





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ABCMR Record of Proceedings (cont)                                         AR20130014308



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