IN THE CASE OF:	   

		BOARD DATE:	  10 September 2015

		DOCKET NUMBER:  AR20140021541 


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 other than honorable conditions (UOTHC) discharge to an honorable discharge.

2.  The applicant states she was discharged UOTHC due to a failed urinalysis.  She no longer uses the banned substance that was the reason for the failed urinalysis.

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 the cases 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.

2.  The applicant enlisted in the Regular Army (RA) on 18 June 1980 for 4 years. She completed training and was awarded military occupational specialty 91E (Dental Specialist).  She was promoted to pay grade E-4 on 1 November 1982.

3.  She reenlisted in the RA on 15 June 1984.  She served in Belgium from 16 January 1984 through 8 December 1987.  

4.  On 26 April 1988, she accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully using cocaine between 15 March and 15 April 1988.  Her punishment consisted of a reduction to pay grade E-3/private first class (PFC), a forfeiture of $203.00 pay for one month, and 14 days of extra duty and restriction that was suspended. The imposing commander directed the Article 15 be filed in the performance fiche of her official military personnel file (OMPF).  She elected not to appeal the punishment.

5.  She was reduced to pay grade E-3 on 26 April 1988.

6.  In a memorandum for record, dated 10 May 1988, the applicant's company commander stated on 9 May 1988 the applicant reported to him to discuss if she was aware of her Article 15 for cocaine use and that as part of the punishment she was reduced to pay grade E-3/PFC even though she continued to wear the rank of E-4 (unlawful wear of insignia – Article 134, UCMJ).  The applicant replied she knew of her reduction, but could not give him an answer as to when she would or thought she would put on the reduced insignia.  At that time, he directed the correct rank of insignia be placed on her collar and no further action would be taken.

7.  On 24 August 1988, the suspended portion of her punishment of 14 days of extra duty and restriction was vacated because of violations of the UCMJ that included her failure to be at her appointed place of duty at the appointed time.

8.  On 26 August 1988, she was apprised of a potential NJP for being absent without leave (AWOL) from 9 to 13 July 1988 and making a false statement with intent to deceive.  The applicant elected to demand a trial by court-martial.

9.  On 28 October 1988, she was issued a letter of reprimand (LOR) stating she was hereby reprimanded for being AWOL and failing to repair to her appointed place of duty.  The AWOL occurred from 9 to 12 July 1988 and the failure to repair occurred from 11 to 12 July 1988.  The commander also decided not to refer her case to trial by court-martial based on insufficient compelling evidence.  The imposing commander directed the LOR be filed in her Dental Command (DENTAC) personnel file.    

10.  She was again promoted to pay grade E-4 on 1 December 1988.

11.  She again reenlisted in the RA on 7 February 1990.

12.  A Criminal Investigation Command (CID) Report of Investigation, dated 14 May 1990, shows she conspired together with two civilians to distribute "crack" cocaine to a U.S. Army CID confidential source.

13.  On 31 July 1990, a DD Form 458 (Charge Sheet) was completed by the Dental Commander, DENTAC, Fort Meade, MD.  The applicant was charged with one specification each of conspiring with two civilians to wrongfully distribute cocaine, wrongfully using cocaine, wrongfully possessing cocaine, and wrongfully having sexual intercourse with a person not her husband.

14.  On 7 August 1990, after consulting with counsel, the applicant requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  She indicated she was making the request of her own free will and she had not been subjected to any coercion whatsoever by any person.  She understood that by requesting discharge she was admitting guilt to the charges against her or of a lesser-included offense that also authorized a punitive discharge.  She also acknowledged the potential imposition of an UOTHC discharge and the result of the issuance of such a discharge.  She waived her rights and elected to submit a statement on her own behalf.  

15.  In her statement, dated 9 August 1990, the applicant stated:

   a.  Her future with the Army had been eliminated and she accepted full responsibility for her actions.  She had already taken steps to rehabilitate herself. She was grateful to her command for referring her for counseling.  Through that counseling and support she had learned a more constructive manner in which to manage her personal and professional affairs.  A number of stressful situations both personal to include having a second child and professional (failing a promotion board) occurred over the past 18 months that contributed to her poor decisions.    

   b.  She was greatly concerned about the impact that an UOTHC discharge would have on her future.  She requested compassion for her family and herself, for the issuance of an honorable discharge which would provide her the opportunity to be a productive and vital citizen after her military service was terminated.  If an honorable discharge was out of the question, she requested at least a general discharge.

16.  Between 15 and 17 August 1990, the applicant's chain of command recommended approval of her discharge request and the issuance of an UOTHC discharge.

17.  On 17 August 1990, the Staff Judge Advocate reviewed the separation package and found it legally sufficient.  He recommended approval of the applicant's request with an UOTHC discharge.

18.  Accordingly on 17 August 1990 the separation authority approved the applicant's request and directed the issuance of an UOTHC Discharge Certificate.

19.  She was discharged in pay grade E-4 on 24 August 1990.  Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she was credited with completing 10 years, 2 months, and 7 days of net active service.  Her service was characterized as UOTHC.

20.  There is no indication she petitioned the Army Discharge Review Board for an upgrade of her discharge within that board's 15-year statute of limitations.

21.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  The regulation stated in:

	a.  Chapter 10 - a member who had committed an offense or offenses for which the authorized punishment includes a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request could be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge was authorized, a discharge UOTHC was normally considered appropriate.

   b.  Paragraph 3-7a - an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.
   
   c.  Paragraph 3-7b - a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.


DISCUSSION AND CONCLUSIONS:

1.  The applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharge actions processed under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu by court-martial.  She acknowledged the reason for her discharge and that she could be furnished an UOTHC Discharge Certificate.  She waived her rights and submitted a statement in her own behalf.  The separation authority approved her request and she was discharged accordingly.

2.  The evidence shows her administrative discharge was accomplished in compliance with applicable law and regulation in effect at the time with no indication of procedural error which would have jeopardized her rights.  Her military records contain no evidence which would warrant an upgrade of her UOTHC discharge.  The characterization of her discharge was commensurate with the reason for discharge in accordance with the governing regulation in effect at the time.

3.  In view of the foregoing, there is insufficient evidence to warrant granting her 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)                                         AR20140021541



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ABCMR Record of Proceedings (cont)                                         AR20140021541



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