IN THE CASE OF:	  

		BOARD DATE:	  17 September 2015

		DOCKET NUMBER:  AR20140021452 


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 general discharge under honorable conditions to honorable.

2.  The applicant states:

* she was involved in an incident off post in which her drink was drugged and she failed a urinalysis
* her discharge has caused her problems searching for and finding suitable and gainful employment
* she has a daughter to support and she needs to present an honorable discharge to get the type of job she needs to be an active member of society
* she was taken advantage of in the incident and she was unintentionally in a situation that caused her bodily harm
* her failed urinalysis was unjust and it ended her Army career
* she was not then nor has she ever been a drug user or abuser and her discharge is negatively affecting her in many ways
* she has proven herself to be upstanding and she has many accomplishments
* her type of discharge is holding her back from reaching her full potential
* her discharge is part of her past that she would like to erase and start a new and fresh slate
* she has a Bachelor of Science degree in Psychology from Colorado Christian University, she is certified in emergency medicine, and she has many credit hours in the field of Certified Addiction Counseling
* she is anticipating starting her master's degree program in the near future in Mental Health/Family Counseling and having an honorable discharge would greatly help her achieve these upcoming goals
* she has perfected her personal and professional life and she is a great role model for others
* the military turned her around and she is forever grateful
* she has previously been denied by the Army Discharge Review Board

3.  The applicant provides:

* self-authored statement
* three newspaper articles
* Bachelor of Science in Psychology Diploma
* two training certificates of completion
* event announcement
* five character-reference letters
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

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 7 August 2001.

3.  On 24 October 2002, her commander was notified that she had tested positive for amphetamine/drug-metabolizing enzymes on 5 September 2002.

4.  On 5 November 2002, the Chief, Military Justice, Headquarters, U.S. Army Infantry Center, Fort Benning, GA, issued a memorandum clarifying separation processing for drug-related offenses.

5.  On 16 January 2003, the applicant met with a medical review officer who advised the applicant of the nature of the visit and limits of confidentiality.  The applicant verbalized her understanding and stated she had previously met the medical officer for a positive urinalysis.  The applicant acknowledged she had used a methamphetamine.  The medical officer noted the applicant's medical record and a review of the Composite Health Care System revealed no legitimate use and legitimate use was not established.  The applicant advised the medical officer that she was being seen in the Army Substance Abuse Program.

6.  On 12 February 2003, the applicant's commander was again notified that she had tested positive for amphetamine/drug metabolizing enzymes on 21 October 2002.

7.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 2 April 2003, shows she was evaluated for administrative discharge from the Army.  She was found to have no mental health problems and she was cleared for any administrative action deemed appropriate by her command.

8.  On 23 April 2003, her immediate commander initiated discharge action against her under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, based on her positive urinalysis for methamphetamine and dextro-methamphetamine on two occasions on 5 September 2002 and 21 October 2002.  She consulted with counsel and she was advised of the basis for the contemplated separation action for commission of a serious offense, the type of discharge she could receive, the possible effects of this discharge, and the procedures and rights available to her.  She submitted statements in her own behalf and waived her rights to an administrative separation board.  Her statements are not contained in the available records.

9.  On 29 April 2003, her separation action was found legally sufficient to support separation.  The commander was advised that there was no requirement to transfer a Soldier who had committed serious misconduct and the separation authority would not need to waive the rehabilitation transfer.

10.  On 5 May 2003, the separation authority directed the applicant's separation under honorable conditions (general), waived rehabilitative transfer requirements, and directed that she not be transferred to the U.S. Army Reserve Individual Ready Reserve.

11.  On 27 May 2003, she was discharged accordingly.  She completed 1 year, 9 months, and 21 days of creditable active military service.  Her DD Form 214 shows in:

* item 25 (Separation Authority) – Army Regulation 635-200, paragraph 
14-12c(2)
* item 26 (Separation Code) – JKK
* item 27 (Reentry Code) – 4
* item 28 (Narrative Reason for Separation) – misconduct

12.  On 6 January 2009, the Army Review Boards Agency Support Division, St. Louis, MO, changed her reentry eligibility (RE) code from RE-3 to RE-4 and issued her a new DD Form 214.

13.  On 19 October 2009, the Army Discharge Review Board denied her request for an upgrade of her discharge.

14.  She provided a self-authored statement, three newspaper articles describing her community involvement, her Bachelor of Science in Psychology diploma, certificates of completion for Infectious Diseases in Addiction Treatment and Pharmacology I, an announcement for a community event she planned, four character-reference letters, and one letter of recommendation.

15.  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 personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.  Paragraph 14-12c, in effect at the time, provided for the separation of members for misconduct based on the commission of a serious offense.  Paragraph 14-12c(2) identified abuse of illegal drugs as serious misconduct and provided for separation for this reason.  Soldiers were required to be processed for separation for abuse of illegal drugs.  "Processed for separation" meant that separation action would be initiated and processed through the chain of command to the separation authority for appropriate action.

	b.  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 contends her drink was unknowingly drugged.  However, she failed a second urinalysis administered over 30 days later.  The evidence shows the medical officer advised her of the nature of her visit and the limits of confidentiality after she tested positive for amphetamine/drug-metabolizing enzymes a second time.  She verbalized her understanding and she acknowledged she had used a methamphetamine.

2.  The available evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized her rights.  All requirements of law and regulation were met and her rights were fully protected throughout the separation process.

3.  The record confirms the applicant was separated by reason of misconduct based on her wrongful use of methamphetamine and dextro-methamphetamine.  She was appropriately assigned the separation code of JKK and an RE code of 4 based on the authority and reason for her separation for abuse of illegal drugs.  Absent any evidence of error or injustice in the separation process, there is an insufficient evidentiary basis to support granting 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 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)                                         AR20140021452



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140021452



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1