IN THE CASE OF:	  

		BOARD DATE:	  23 October 2014

		DOCKET NUMBER:  AR20140005177 


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 involved with the wrong people at the wrong time.  She was guilty by association but her drug test was clean.  She made a small mistake and learned from it.  Since her discharge, she has maintained a clean record and she remained very successful.

3.  The applicant provides no additional 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 enlisted in the Regular Army on 25 April 2002.
3.  A DA Form 4856 (Developmental Counseling Form), dated 3 November 2004, shows she was counseled for wrongful use and possession of a controlled substance.  The counseling form also shows she admitted to using the drug methylenedioxy-N-methylamphetamine (MDMA), also known as ecstasy.

4.  On 10 December 2004, she accepted nonjudicial punishment for wrongful possession of MDMA between 23 October and 1 November 2004.

5.  On 13 January 2005, the applicant's immediate commander informed her of her intent to separate her from the Army under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, for commission of a serious offense (abuse of illegal drugs), with a general discharge.  The commander cited as the reason for the proposed separation action the applicant's wrongful use and possession of MDMA.  She was also advised of her right to:

* consult with legal counsel 
* submit statements in her own behalf
* waive her rights in writing

6.  On 19 January 2005, she consulted with legal counsel and she was advised of the basis for the contemplated separation action for commission of a serious offense.  She elected not to submit a statement in her own behalf.  She acknowledged she understood she may expect to encounter substantial prejudice in civilian life if a general, under honorable conditions discharge was issued to her.  She also acknowledged she understood that if she received a character of service of less than honorable, she may apply to the Army Discharge Review Board (ADRB) or this Board for an upgrade of her discharge; however, she realized that an act of consideration by either board did not imply her discharge would be upgraded.

7.  On 27 January 2005, the appropriate separation authority approved the recommendation for separation under the provisions of Army Regulation 
635-200, chapter 14, and directed the issuance of a General Discharge Certificate.  On 17 February 2005, she was discharged accordingly.

8.  The ADRB denied her request for a discharge upgrade on 22 September 2006.




9.  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 minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is 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.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.

   b.  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 a discharge upgrade has been carefully considered.

2.  Her record shows she accepted nonjudicial punishment for the possession of illegal drugs, which is clearly a serious offense.

3.  The available evidence confirms her separation processing for misconduct was accomplished in accordance with the applicable regulations.  All requirements of law and regulation were met and her rights were fully protected throughout the separation process.  The type of discharge directed and the narrative reason for her separation therefore were appropriate considering all the facts of the case.

4.  By violating the Army's policy not to possess or use illegal drugs, she compromised the special trust and confidence placed in her as a Soldier and knowingly risked her military career.  This misconduct clearly diminished the quality of her service below that meriting a fully honorable discharge.

5.  The applicant has failed to provide evidence demonstrating that the command's actions and/or the characterization of her service were in error or unjust.

6.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20140005177





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ABCMR Record of Proceedings (cont)                                         AR20140005177



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