IN THE CASE OF:	  

		BOARD DATE:	  3 February 2015

		DOCKET NUMBER:  AR20140008256 


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 a fully honorable discharge.

2.  The applicant states that her discharge should be upgraded based on her service record prior to being stationed at Fort Benning, GA.  The incident that occurred was out of character and was due to fear that went along with her not being able to report the harassment that she endured.

3.  The applicant provides DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) dated 28 April 2014.

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 15 March 1995.  She completed training as a petroleum supply specialist.

3.  The applicant was counseled on 11 and 12 November 1995 for disobeying a lawful order given by a noncommissioned officer.

4.  On 21 November 1995, she accepted nonjudicial punishment (NJP) for two specifications of disobeying a lawful order.

5.  On 27 March 1996, the applicant accepted NJP for three specification of failure to go to her appointed place of duty.

6.  The applicant accepted NJP on 12 July 1996 for wrongfully using marijuana between 11 May and 11 June 1996.

7.  On 11 July 1996, she was counseled for testing positive for tetrahydrocannabinol (THC).

8.  The applicant accepted NJP on 21 August 1996 for wrongfully using marijuana between 11 June and 11 July 1996.

9.  On 2 October 1996, the applicant was notified that she was being recommended for discharge under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12c, for misconduct – commission of a serious offense.  She acknowledged receipt of the notification.  After consulting with counsel, she elected not to submit a statement in her own behalf.

10.  The appropriate authority approved the recommendation for discharge and directed the issuance of a general discharge.  On 13 November 1996, the applicant was discharged accordingly.  She completed 1 year, 7 months, and 29 days of net active service this period.

11.  The available evidence does not show the applicant ever applied to the Army Discharge Review Board for an upgrade of her discharge.

12.  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 consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military 

authorities or conduct prejudicial to good order and discipline), 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 contentions have been noted.  However, she has not shown error or injustice in the type of discharge she received.

2.  The evidence of record shows she accepted NJP for wrongfully using marijuana and for testing positive for THC.  She also accepted NJP for disobeying a lawful order and for failure to go to her appointed placed of duty.  A discharge under other than honorable conditions is normally considered appropriate.  However, the separation authority directed the issuance of a general discharge.

3.  There is no evidence in the available record, nor has the applicant provided any evidence, showing she was harassed while she was in the Army.  Unfortunately, she did not raise that contention at the time.  The available evidence shows that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, type of discharge she received was generous based on her overall record of service.

4.  In view of the foregoing, her request should be denied.


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)                                         AR20140008256



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ABCMR Record of Proceedings (cont)                                         AR20140008256



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