SAMR-RB 25 January 2017 MEMORANDUM FOR Case Management Division, US Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for AR20160012653 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings, dated 1O January 2017, in which the Board members unanimously recommended denial of the applicant's request. 2. I have reviewed the findings, conclusions, and Board member recommendations. I find there is sufficient evidence to grant partial relief. Therefore, under the authority of Title 10, United States Code, section 1552, I direct that all Department of the Army Records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing her narrative reason for separation as "misconduct, minor disciplinary infractions" and her separation code as "JKN." 3. Request necessary administrative action be taken to effect the correction of records as indicated no later than 25 May 2017. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: Encl BOARD DATE: 10 January 2017 DOCKET NUMBER: AR20160012653 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: 10 January 2017 DOCKET NUMBER: AR20160012653 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: 10 January 2017 DOCKET NUMBER: AR20160012653 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 character of service from under honorable conditions (general) to honorable. 2. The applicant states when she was a Soldier, she worked hard and never got into trouble. She was injured during physical training and while at the National Training Center and eventually received a permanent profile – P2. After returning from Kuwait, her pain was worse than ever. She took all of the medications that were prescribed to her but nothing helped. She made the choice to smoke marijuana on one occasion in order to ease her pain. She tried asking her noncommissioned officers (NCOs) for help but received none. 3. The applicant provides a self-authored statement. 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 19 July 2010. 3. Evidence contained in the applicant's official military personnel file shows her urine specimen tested positive for tetrahydrocannabinol (THC) during a command directed urinalysis on 18 April 2013. 4. Her record contains a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 4 June 2013, which shows the applicant accepted nonjudicial punishment (NJP) for the wrongful use of marijuana and did not appeal her punishment that included a reduction in rank from specialist to private first class, forfeiture of $475.00 pay, and extra duty for 45 days. 5. Her record contains DA Forms 2808 (Report of Medical Examination) and 2807-1 (Report of Medical History), dated 11 June 2013. These reports indicate the applicant was in good health, with no indication she suffered from any medical conditions that warranted further disposition through medical channels. Her physical profile rating include a "2" for her lower extremities. The summary of defects indicates she had chronic knee pain. 6. Her record contains DA Form 3822 (Report of Mental Status Evaluation), dated 26 June 2013, which documents the results of the applicant's pre-separation psychological assessment. The assessing psychologist indicated that the applicant did not have any psychological or mental conditions and was fit for duty. Her post-traumatic stress disorder and mild traumatic brain injury screenings were negative. 7. Her immediate commander notified her on 31 July 2013 of his intent to initiate separation action against her under the provisions of Army Regulation 635-200 (Personnel Separation – Enlisted Personnel), paragraph 14-12c(2), by reason of misconduct – abuse of illegal drugs for testing positive for marijuana during a unit urinalysis collection. The applicant acknowledged receipt of the notification memorandum the same day. 8. On 6 August 2013, she consulted with legal counsel and was advised of 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/rights that were available to her. She acknowledged that she understood she could encounter substantial prejudice in civilian life if a general discharge was issued to her. She also acknowledged that she may be ineligible for some benefits as a veteran under both Federal and State laws. 9. On 20 August 2013, the separation authority approved the discharge action under the provisions of Army Regulation 635-200, paragraph 14-12c(2) and directed that she be discharged with a characterization of service of under honorable conditions (general). 10. She was discharged from the Army on 11 September 2013. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c(2), by reason of misconduct (drug abuse), with a characterization of service of under honorable conditions (general). 11. The applicant petitioned the Army Discharge Review Board to upgrade her discharge. On 27 August 2013 she was notified the Board denied her request. 12. The applicant provides a self-authored statement in which she claims she is now disabled and trying to go to college. She claims she was a good Soldier who served her country, was injured, and received no help from her NCOs and unit so she took matters into her own hands. She loved her job and loved serving her country but she got hurt and received no help. She would love to further her education but she needs her DD Form 214 corrected with an honorable characterization of service in order to attend school. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 deals with separation for various types of misconduct, which includes drug abuse, and states that individuals identified as drug abusers may be separated prior to their normal expiration of term of service. This regulation states that abuse of illegal drugs is serious misconduct. Separation action normally would be based upon commission of a serious offense. However, relevant facts may mitigate the nature of the offense. Therefore, a single drug abuse offense may be combined with one or more minor disciplinary infractions of incidents of other misconduct and processed for separation, as appropriate. 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: 1. The applicant tested positive for the use of marijuana. She knowingly and wrongfully made the choice to use an illegal drug. Testing positive for illegal drug use is a punishable offense. 2. Although a discharge under other than honorable conditions was normally considered appropriate for the offense committed, it appears her chain of command considered her overall record of service when the separation authority directed the issuance of a general discharge. 3. The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or other benefits. Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160012653 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160012653 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2