IN THE CASE OF

		BOARD DATE:	    27 March 2014

		DOCKET NUMBER:  AR20130014402 


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:

* her records be cleared and sealed
* her Article 15 be removed from her records
* her narrative reason for discharge be changed
* the drug offense be taken out of her records

2.  The applicant states:

* she has fixed everything in her records, including the characterization of service (upgraded to honorable) but when she applied for a job, things surfaced up again
* she feels her first Article 15 (for not being in a spot when told) was not given fairly
* she also feels second Article 15 (drugs) was not received for the right reasons
* she has changed everything in her records but this fault still haunts her and when she goes for employment, they see this

3.  The applicant provides:

* Separation packet with allied documents and cover sheet
* DA Form 2823 (Sworn Statement)
* Article 15, dated 10 March 2006
* DD Form 214 (Certificate of Release or Discharge from Active Duty) (general discharge)
* Reissued DD Form 214 (honorable discharge)
* DD Form 215 (Correction to DD Form 214)

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 Regular Army on 6 May 2004 and she held military occupational specialty 14T (Patriot Missile Operator/Maintainer).  

3.  She served in Germany from 1 November 2004 to around May 2006.  She was assigned to C Battery, 5th Battalion, 7th Air Defense Artillery. 

4.  She provides a DA Form 2823, dated 16 November 2005, wherein her team leader contended that she failed to inform him of her whereabouts on 16 August 2005.  However, there is no indication or record that she received an Article 15 as a result of this issue. 

5.  On 4 January 2006, she participated in a unit urinalysis and her urine sample tested positive for ecstasy (MDMA), an illegal substance. 

6.  On 10 March 2006, she accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for wrongfully using illegal drugs.  Her punishment consisted of a reduction, forfeiture of pay, and extra duty and restriction.  Since she held a grade below that of sergeant at the time, the imposing officer did not file this Article 15 in her official records. 

7.  On 24 April 2006, the applicant’s immediate commander notified the applicant of her intent to initiate separation action against her in accordance with chapter 14 of Army Regulation 635-200 (Personnel Separations) for misconduct - commission of a serious offense, wrongfully using illegal drugs.  She (the immediate commander) recommended a general discharge. 

8.  On 28 April 2006, 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 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 that were available to her.  She waived consideration of her case by a separation board and/or a personal appearance before a separation board and she elected to submit a statement on her own behalf.  She acknowledged she understood the consequences of her election. 

9.  Subsequent to her acknowledgement, the applicant’s immediate commander initiated separation action against her in accordance with chapter 14 of Army Regulation 635-200 for misconduct.  Her intermediate commander recommended approval of the discharge action with the issuance of a General Discharge Certificate. 

10.  On 16 May 2006, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct - commission of a serious offense and directed the applicant be issued a General Discharge Certificate.  On 27 May 2006, the applicant was accordingly discharged.

11.  The DD Form 214 she was issued confirms she was discharged under the provisions of chapter 14 of Army Regulation 635-200 with a character of service as under honorable conditions (general).  This form further confirms that the applicant completed 2 years and 22 days of creditable active military service.  Additionally, it shows in:

* Item 24 (Character of Service) - Under Honorable Conditions (General)
* Item 25 (Separation Authority) - AR 635-200, paragraph 14-12c(2)
* Item 26 (Separation Code) - JKK
* Item 27 (Reentry Code) - 4
* Item 28 (Narrative Reason for Separation) - Misconduct (Drug Abuse)

12.  On 12 January 2007, the Army Discharge Review Board (ADRB) reviewed her discharge and determined it was improper because her unit used the wrong procedures to discharge her.  As a result, the ADRB directed her characterization of service be changed to honorable and she be reissued a DD Form 214.  

13.  Also on 12 January 2007, her DD Form 214 was voided.  She was reissued a new DD Form 214 that shows she was discharged under the provisions of paragraph 5-3 (Secretarial Authority) of Army Regulation 635-200 with an honorable characterization of service.  Additionally, it shows in:

* Item 24 - Honorable
* Item 25 - AR 635-200, paragraph 5-3
* Item 26 - JFF
* Item 27 - 4
* Item 28 - Secretarial Authority 

14.  On 13 September 2007, this Board reviewed her petition for an upgrade of her RE Code and determined her request had merit.  As a result, the Board granted relief by upgrading her RE Code from RE-4 to RE-1. 

15.  On 9 November 2007, she was issued a DD Form 215 that corrected her RE Code to RE-1. 

16.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  

	a.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions; a pattern of misconduct; commission of a serious offense, to include abuse of illegal drugs; convictions by civil authorities; and desertion or absence without leave.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  Paragraph 14-12 prescribes the conditions that subject Soldiers to discharge for misconduct.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  

17.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial.  It provides that a commander should use nonpunitive administrative measures to the fullest extent to further the efficiency of the command before resorting to NJP under the UCMJ.  Use of NJP is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate.  Paragraph 3-37(b) states for Soldiers who are at the rank of specialist (SPC) or CPL and below (prior to punishment) the original will be filed locally in unit NJP or unit personnel files.  Such locally filed originals will be destroyed at the end of 2 years from the date of imposition of punishment or on the Soldier’s transfer to another general court-martial convening authority, whichever occurs first.  For these Soldiers, the imposing commander should annotate item 4b of DA Form 2627 as "not applicable (N/A)."

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant committed a serious offense in that she wrongfully used illegal drugs.  As a result, she received an Article 15.  However, since she was holding the rank of E-3 at the time, this Article 15 was never filed in her official records.  The Board cannot remove a document that is not filed in her records. 

2.  Her misconduct led her chain of command to initiate separation action against her.  She consulted with counsel and she was advised of her rights.  The separation authority approved her discharge with the issuance of a general, under honorable conditions characterization of service.  Accordingly, she was discharged on 27 May 2006. 

3.  Soon after her discharge, she petitioned the ADRB for a review of her discharge.  The ADRB determined her discharge was not proper and the ADRB directed her characterization of service be changed to honorable.  The ADRB took this action because her unit used the wrong procedures to discharge her, not because it determined she did not commit the offense.  She was reissued a new DD Form 214 that shows she was discharged under the provisions of paragraph 5-3 (Secretarial Authority) of Army Regulation 635-200 with an honorable characterization of service and corresponding authority, separation code, and narrative reason for separation.  She also petitioned this Board for an upgrade of her RE Code and was in fact granted relief.  As a result, she was issued a DD Form 215 that upgraded her RE Code to RE-1.  With this action, she became whole.  

4.  She contends her records should be cleared and sealed, her Article 15 be removed from her records, her narrative reason for discharge be changed, and the drug offense be taken out of her records:

	a.  With respect to clearing her records, her military records are cleared.  The original DD Form 214 that reflected the drug misconduct is not filed in her records.  The reissued DD Form 214 reflects an upgraded character of service by the Secretarial Authority.  There is no further action contemplated by this Board. 

	b.  With respect to having her record sealed, record sealing is the practice of sealing or, in some cases, destroying court records that would otherwise be publicly accessible as public records.  The term is derived from the tradition of placing a seal on specified files or documents that prevents anyone from reviewing the files without receiving a court order.  The modern process and requirements to seal a record and the protections it provides vary from jurisdiction to jurisdiction, and even between civil and criminal cases.  The ABCMR, however, is not a court and the applicant's military records are not publicly accessible as public records.  

	c.  With respect to removing the Article 15 from her records, the Article 15 is not filed in her military records.  The Board cannot remove a document that does not exist in her military records.  

	d.  With respect to the narrative reason for separation, this action was accomplished by the ADRB.  Her narrative reason for separation is reflected on her reissued DD Form 214.  Finally, with respect to taking the drug offense out of her records, there is no drug offense in her military records.  If there is a mention of it in Crime Records Center files, again, no determination was made that she did not commit the offense.

5.  There is no further action contemplated by the Board with regard to the applicant's records since her records had already been corrected and she is whole.  Background checks conducted by civilian employers in relation to civilian employment are not within the purview of this Board.  The applicant is advised to address this issue with the civilian establishment or employer. 

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)                                         AR20130014402





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ABCMR Record of Proceedings (cont)                                         AR20130014402



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