BOARD DATE: 16 May 2017 DOCKET NUMBER: AR20170005383 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ____x____ ____x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 16 May 2017 DOCKET NUMBER: AR20170005383 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. BOARD DATE: 16 May 2017 DOCKET NUMBER: AR20170005383 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 discharge and correction of the narrative reason for separation. 2. The applicant states she believes the characterization of service was unjust because it was based on the result of one urine test that was later shown to be a false positive. The test was conducted while she was on convalescent leave due to major surgery. She was prescribed pain medication and antibiotics but she was not using illegal drugs of any kind. She was pressured and deceived into admitting drug use because they said it would be dismissed at the company level because she was given all kind of medication during her surgery and recovery. She was still on medications at the time. She completed 12 years and 7 months of honorable service as evidenced by her award of the Army Commendation Medal, two awards of the Army Achievement Medal, and three awards of the Good Conduct Medal, as well as participating in several campaigns. She was forced out of the Army and that has affected her life negatively because she was unjustly accused and unable to think straight due to the recovery from surgery. 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Multiple character reference letters 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 21 June 1985 and she held military occupational specialties 91B (Medical Specialist) and 91C (Practical Nurse). 3. She served through multiple reenlistments in a variety of assignments, including Germany and Southwest Asia, and she attained the rank/grade of staff sergeant (SSG)/E-6. 4. On 18 October 1996, at Fort Sam Houston, TX, she participated in a unit urinalysis and her urine sample tested positive for cocaine. The U.S. Army Criminal Investigation Command conducted an investigation and established probably cause to believe she had wrongfully used cocaine. 5. On 17 November 1997, she accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for wrongfully using cocaine between on or about 12 October and 18 October 1997. Her punishment consisted of a reduction to E-5, a forfeiture pay, and extra duty. She appealed but her appeal was denied. 6. Right before her NJP, on 12 November 1997, she participated in a unit urinalysis and her urine sample tested positive for cocaine. 7. On 10 December 1997, she again accepted NJP under the provisions of Article 15 of the UCMJ, for wrongfully using cocaine between on or about 9 and 12 November 1997. Her punishment consisted of a reduction to E-4, a forfeiture pay, and extra duty. She elected not to appeal. 8. Shortly after her NJP, her immediate commander notified her of his intent to initiate separation action against her in accordance with Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12(c), for commission of a serious offense due to drug use on two separate occasions. The immediate commander recommended an under other than honorable conditions discharge and advised the applicant of her rights. 9. The applicant acknowledged receipt of her commander's intent to separate her. She consulted with legal counsel who advised her of the basis for the contemplated separation for misconduct, the type of discharge she could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures and rights that were available to her. The applicant requested consideration of her case by a separation board and/or a personal appearance before a separation board and she elected not to submit a statement in her own behalf. She acknowledged she understood that: * she could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to her * she could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge 10. Following this acknowledgement, her immediate commander initiated separation action against her in accordance with AR 635-200, paragraph 14-12c, for misconduct (wrongful use of illegal drugs). The immediate commander further recommended an under other than honorable conditions discharge. The applicant's intermediate and senior commanders recommended approval of the discharge action in accordance with AR 635-200, paragraph 14-12(c), with an under other than honorable conditions character of service. 11. In February 1998, she was advised of the appointment of an administrative separation board, the date of this board, and her right to appear before this board with or without counsel, and with or without witnesses. 12. On 13 April 1998, an administrative separation board convened at Headquarters, U.S. Army Medical Department Center and School, Fort Sam Houston, TX, with the applicant and her counsel present. The administrative separation board carefully considered the evidence and her testimony and unanimously found the applicant committed a serious offense and recommended her discharge with an under other than honorable conditions characterization of service. 13. A Staff Judge Advocate reviewed the administrative separation board proceedings and found them legally sufficient. 14. The convening/separation authority approved the administrative separation board and ordered the applicant separated from the Army under the provisions of AR 635-200 by reason of misconduct - commission of a serious offense and directed issuance of an under other than honorable conditions discharge. On 28 May 1998, the applicant was discharged accordingly. 15. Her DD Form 214 shows she was discharged under the provisions of AR 635-200, paragraph 14-12(c) by reason of misconduct with an under other than honorable conditions discharge. She completed 12 years, 11 months, and 8 days of active service. She was assigned Separation Code "JKK" and her narrative reason for separation is shown as "Misconduct." She was awarded or authorized: * Army Commendation Medal (3rd Award) * Army Achievement Medal (2nd Award) * Army Good Conduct Medal (3rd Award) * National Defense Service Medal * Southwest Asia Service Medal with 3 bronze service stars * NCO professional Development Ribbon with Numeral 2 * Army Service Ribbon * Overseas Service Ribbon * Kuwait Liberation Medal (SA) * Kuwait Liberation Medal (K) * Driver and Mechanic Badge with Driver-W Bar 16. There is no indication she petitioned the Army Discharge Review Board for a review of her discharge within that board's 15-year statute of limitations. 17. The applicant provides several character reference letters from authors who describe her as: * a wonderful, loving, and responsible lady * a spirit-led, loving, and caring individual * she loves God and people of the world * a motivated, dedicated, and determined individual with strong ethics * a reliable and efficient employee * a remarkable person with a strong will who overcomes challenges REFERENCES: 1. AR 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 included minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. Army policy states that an under other than honorable conditions discharge is normally considered appropriate for a Soldier discharged for misconduct. a. Paragraph 3-7a states 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. b. Paragraph 3-7b states that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 2. AR 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty. The "JKK" SPD code is the correct code for Soldiers separating under paragraph 14-12(c) of Army Regulation 635-200 by reason of misconduct - drug abuse. DISCUSSION: 1. The available evidence confirms the applicant committed a serious offense in that she wrongfully used illegal drugs and tested positive for cocaine during a unit urinalysis, on two occasions. Accordingly, her chain of command initiated separation action against her. 2. The applicant exercised her rights and requested an administrative separation board. The administrative separation board carefully considered the evidence and her testimony and unanimously found the applicant committed a serious offense and recommended her discharge with an under other than honorable conditions characterization of service. All requirements of law and regulation were met and her rights were fully protected throughout the separation process 3. The convening/separation authority approved the recommendation for discharge and the applicant was ultimately discharged under AR 635-200, chapter 14, with an under other than honorable conditions discharge. 4. The chain of command, administrative separation board, and the separation authority all found her continued use of illegal drugs diminished the quality of her service below that meriting an honorable or a general discharge. 5. Her narrative reason for separation was assigned based on the fact that she was discharged under the provisions of chapter 14 of AR 635-200 due to misconduct, commission of a serious offense, abuse of drugs. Absent her misconduct by wrongfully abusing drugs, there was no fundamental reason to process her for discharge. The underlying reason for her discharge was her misconduct. The only valid narrative reason for separation permitted under that paragraph is "misconduct" and the appropriate SPD code associated with this discharge is "JKK," which are correctly shown on her DD Form 214. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170005383 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170005383 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2