BOARD DATE: 10 May 2018 DOCKET NUMBER: AR20160007160 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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: 10 May 2018 DOCKET NUMBER: AR20160007160 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, in effect, an upgrade of her general, under honorable conditions discharge. 2. The applicant states that it has been over 20 years since she was discharged and she has made many positive life changes since that time. She returned to school and received degrees in the fields of education and human services. This has allowed her to have a positive influence on her family and community. She is currently employed by the Department of Defense and has received an excellent performance review. 3. The applicant provides copies of her civilian education documents and performance review evaluation. 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 U.S. Army Reserve (USAR) on 28 February 1986 for a period of 8 years. 3. A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant entered active duty training (ADT) on 4 November 1986, was released from ADT on 20 March 1987, and transferred to a USAR unit. It also shows she was awarded military occupational specialty (MOS) 76X (Subsistence Supply Specialist – Training Only) and that she had completed 4 months and 17 days of net active service this period. 4. On 28 March 1988, the applicant was honorably discharged from the USAR, in the rank of private/pay grade E-1, to enlist in the Regular Army (RA). 5. She enlisted in the RA on 29 March 1989 for a period of 4 years and – * was awarded MOS 63J (Quartermaster Chemical Equipment Repairer) * was promoted to specialist/pay grade E-4 on 1 December 1989 * served in Korea from 24 November 1990 to 11 December 1991 * was assigned to the 28th Combat Support Hospital, Fort Bragg, NC, on 9 January 1992 6. A review of the applicant's military personnel records revealed several DA Forms 4856 (General Counseling Forms) and related documents pertaining to the applicant that show on – * 12 October 1993 – apprehended for failing to appear before a magistrate; court appearance for writing worthless checks on 13 October 1993 * 4 January 1993 – counseled for failing to promptly pay her debts; she was referred to Army Community Services for debt management * 4 May 1993 – counseled for failing to promptly pay her debts * 14 May 1993 – counseled for a disturbance in her family living quarters * 25 May 1993 – counseled for failing to attend a mandatory Social Work Service appointment * 14 February 1994 – counseled for failing two of her last three Army Physical Fitness Tests * 10 March 1994 – counseled for having continual problems with delinquent checks, bills, and payments 7. A DA Form 3822-R (Report of Mental Status Evaluation), dated 21 April 1994, shows the applicant underwent a mental status evaluation. The mental health (MH) provider found the applicant's behavior was normal; she was fully alert; and her mood unremarkable, thinking process clear, thought content normal, and memory good. The MH provider also found the applicant was mentally responsible, had the mental capacity to understand and participate in board proceedings, and met medical retention standards. The applicant was psychiatrically cleared for any administrative action deemed appropriate by command. 8. Two DA Forms 4187 (Personnel Action) show the applicant's duty status was changed as follows – * from present for duty (PDY) to confined by civil authorities (CCA) effective 1300 hours, 22 June 1994 * from CCA to PDY effective 0600 hours, 24 June 1994 9. On 8 July 1994, the applicant's company commander notified the applicant that he was recommending her for separation under the provisions of (UP) Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 14 (Separation for Misconduct), paragrarph14-12c, based on commission of a serious offense. a. The reason for his proposed action was the applicant wrongfully used a controlled substance (cocaine) between April and May 1994. b. The applicant was advised of her rights and the separation procedures involved. The commander also informed her that he was recommending she receive a general, under honorable conditions characterization of service. 10. Following the notification, the applicant acknowledged she had been advised by consulting counsel of the basis for the contemplated separation action and its effects, the rights available to her, and the effect of a waiver of her rights. a. She waived consideration of her case before an administrative separation board (ASB) and waived personal appearance before an ASB. She also waived consulting counsel and representation by military counsel, or civilian counsel at no expense to the Government. b. She did not indicate whether she would submit statements in her own behalf. (A review of the separation packet failed to reveal statements in behalf of the applicant.) c. She acknowledged that she understood she could receive a general, under honorable conditions discharge or an under other than honorable conditions discharge, and that she may expect to encounter substantial prejudice in civilian life in the event either type of discharge was issued to her. d. The applicant placed her signature on the document. 11. On 8 July 1994, the applicant's company commander recommended that she be separated from the U.S. Army with a general, under honorable conditions discharge. 12. On 13 July 1994, the applicant received nonjudicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ), Article 112a, for at or near Fort Bragg, NC, between 25 April 1994 and 24 May 1994, wrongfully using a controlled substance (cocaine). a. It also shows the applicant: (1) was advised of her rights and afforded the opportunity to consult with counsel; (2) did not demand a trial by court-martial; and (3) requested a closed hearing; did not request a person to speak in her behalf; and matters in defense, extenuation, and/or mitigation were not presented. b. On 19 July 1994, in a closed hearing, having considered all matters presented, the Commander, 28th Combat Support Hospital, found the applicant was guilty of the misconduct. c. The punishment imposed was reduction to private/pay grade E-1. d. The applicant indicated that she would not appeal the NJP. 13. On 25 July 1994, the Commander, 28th Combat Support Hospital, recommended approval of the applicant's separation for misconduct based on commission of a serious offense with a general, under honorable conditions discharge. 14. On 1 August 1994, the separation authority approved the recommendation for discharge of the applicant and directed separation UP AR 635-200, paragraph 14-12c, with a general, under honorable conditions discharge. He also directed that the applicant not be transferred to the Individual Ready Reserve. 15. The DD Form 214 the applicant was issued shows she was discharged on 15 August 1994 with a general, under honorable conditions discharge UP AR 635-200, paragraph 14-12c, based on misconduct with a separation code of "JKQ" (misconduct (serious offense)). She had completed 6 years, 4 months, and 15 days of net active service this period. 16. On 14 April 1995, the applicant petitioned the Army Discharge Review Board (ADRB) for a review and upgrade of her discharge. On 16 December 1996, the ADRB reviewed the applicant's record of service and discharge and found that her discharge was both proper and equitable. 17. In support of her application the applicant provides the following documents: a. Certificates, diplomas, and transcripts from Fayetteville Technical Community College and Fayetteville State University that show, in pertinent part, she – * made the President's List for the Spring 2008 semester * made the Dean's List for the Spring 2009 semester * was awarded the degree of Associate in Applied Science (Early Childhood Associate with a Concentration in Special Education) on 15 May 2009 * made the Dean's List for the Spring 2011 and Fall 2011 semesters * was awarded the degree of Bachelor of Science (Birth–Kindergarten) on 8 December 2012 b. A DA Form 3612 (Nonappropriated Fund Instrumentality Employee Performance Rating) for the period 6 November 2014 to 5 November 2015, that shows she received an overall rating of "Excellent (3)." It also shows the specific rating (i.e., "Exceeded" or "Met") and descriptive assessment she received in each of eight Critical Major Duties. REFERENCES: 1. Manual for Courts-Martial (MCM), United States (2012 Edition), Part IV (Punitive Articles), in pertinent part, lists Article 112a (Wrongful use, possession, etc., of controlled substances) and shows, in pertinent part, any person subject to this chapter who wrongfully uses, possesses, manufactures, or distributes a substance described in this subsection shall be punished as a court-martial may direct, as provided in the Table of Maximum Punishment. The substances referred to in the subsection are: opium, heroin, cocaine, amphetamine, lysergic acid, diethylamide, methamphetamine, phencyclidine, barbituric acid, marijuana, and any compound or derivative of any such substance. 2. AR 635-200, in effect at the time, sets forth the authority for the separation of enlisted personnel. a. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. A discharge under other than honorable conditions is normally considered appropriate under this chapter. However, the separation authority may direct a general discharge if such is merited by the member's overall record. Paragraph 14-12 shows the conditions that subject Soldiers to discharge for misconduct. Subparagraph 14-12c identifies commission of a serious military or civil offense as a condition, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the MCM. (The MCM shows wrongful use of illegal drugs is serious misconduct.) b. Chapter 3, 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: 1. The applicant contends, in effect, that her discharge should be upgraded to fully honorable based on her post-service achievements and contributions to the community. 2. The applicant's discharge UP AR 635-200, paragraph 14-12c, based on misconduct (commission of a serious offense) was administratively correct. All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process. 3. During the period of service under review the applicant was apprehended for failing to appear before a magistrate; counseled for several incidents of indiscipline, including a prolonged record of failing to promptly pay her debts; and being CCA from 22 June to 24 June 1994. She also received NJP for wrongfully using a controlled substance (cocaine) and was reduced to private (E-1). 4. Considering that an under other than honorable conditions discharge is normally considered appropriate for misconduct based on commission of a serious offense, it is reasonable to conclude that the chain of command and separation authority carefully considered the characterization of her service (i.e., her service was characterized as under honorable conditions). 5. The applicant's post-service conduct was considered, including her educational accomplishments and job performance appraisal, both of which are commendable. However, post-service achievements alone are not normally a basis for upgrading a characterization of service. BOARD DATE: 10 May 2018 DOCKET NUMBER: AR20160007160 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160007160 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160007160 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2