IN THE CASE OF:  	  

		BOARD DATE:  9 October 2014	  

		DOCKET NUMBER:  AR20140004531 


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, in effect, an upgrade of her general discharge (GD).  

2.  She states she was told by her Judge Advocate General's Corps lawyer to plead guilty to the lesser of the charges against her because no one would believe she was innocent of all charges.  She felt she had no other choice, even though she had not done the things she was accused of.  She has led a productive life.  She is a teacher in the public school system, the mother of a 
16-year-old boy, and a law-abiding citizen.  

3.  She provides no additional evidence in support of her request.  

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 30 December 1992, the applicant enlisted in the Regular Army.  After completing initial entry training, she was awarded military occupational specialty 95B (Military Police).  

3.  On 4 August 1995, she received company-level nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for failing to go at the time prescribed to her appointed place of duty on 7 and 13 July 1995.  Her punishment was reduction to private first class (PFC)/E-3 (suspended, to be automatically remitted if not vacated before 16 December 1995) and restriction for 14 days.  She did not appeal the punishment.

4.  On 8 December 1995, her company commander vacated the suspension of her reduction to PFC/E-3 based on her wrongful use of lysergic acid diethylamide (LSD) on or about 3 January 1995 and wrongful use of marijuana on or about 14 October 1995 and between January and October 1995.  

5.  On 20 December 1995, she received battalion-level NJP for wrongfully using LSD on or about 3 January 1995 and wrongfully using marijuana on or about 14 October 1995 and between January and October 1995.  She did not appeal the punishment.

6.  On 9 January 1996, her company commander notified her he was initiating action to separate her under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12c, for misconduct–abuse of illegal drugs.  He stated the reasons for his proposed action were her use of LSD and marijuana and her failure to report to her appointed place of duty on two occasions.  He informed her he intended to recommend her service be characterized as other than honorable, and he informed her of her rights.  

7.  On 17 January 1996, she consulted with counsel who advised her of the basis for her contemplated separation and its effect, the right available to her, and the effect of a waiver of her rights.  

8.  After consulting with counsel, she acknowledged that she was entitled to have her case considered by an administrative separation board because she was being considered for a separation under other than honorable conditions.  She waived consideration of her case by an administrative separation board contingent upon receiving a characterization of service no less favorable than a GD.  She stated that, if her conditional waiver was disapproved, she requested personal appearance before an administrative separation board and counsel.  

9.  The separation authority denied her conditional waiver.  He referred her case to an administrative separation board to determine whether she would be retained on active duty or discharged for serious misconduct and, if recommended for discharge, to recommend an appropriate level of discharge.  

10.  On 2 May 1996, an administrative separation board heard testimony from the applicant and others.  In her testimony, she admitted using LSD and denied using marijuana.  After considering the evidence, the board found she was undesirable for further retention and that the findings warranted separation.  The board recommended she be discharged with a GD.  

11.  On 30 May 1996, after reviewing the discharge packet and the board proceedings, the separation authority directed her separation under the provisions Army Regulation 635-200, paragraph 14-12c, for serious misconduct with issuance of a GD. 

12.  On 20 June 1996, she was discharged in accordance with the separation authority's decision after completing 3 years, 5 months, and 21 days of net active service.  

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service.  Individuals in pay grades E-5 and above must be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 may also be processed after a first drug offense and must be processed for separation after a second offense.  The issuance of a discharge under other than honorable conditions (UOTHC) is normally considered appropriate.

	b.  Paragraph 3-7a provides that an honorable discharge (HD) 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 evidence of record does not support the applicant's request for an upgrade of her GD.
2.  Post-service accomplishments and conduct are not usually a sufficient basis for upgrading a properly-issued discharge.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

3.  The evidence shows she was properly and equitably discharged in accordance with the applicable regulations, that all requirements of law and regulation were met, and that her rights were fully protected throughout the separation process.  The record supports the reason and authority for her discharge.

4.  Although a UOTHC discharge would normally have been appropriate, an administrative separation board found sufficient mitigating circumstances in her case to recommend she receive a GD, which the separation authority approved.  Considering all the facts of this case, her GD was appropriate.  The available evidence is an insufficient basis upon which to grant 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)                                         AR20140004531





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ABCMR Record of Proceedings (cont)                                         AR20140004531



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