ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  15 August 2019

	DOCKET NUMBER:  AR20180001171


APPLICANT REQUESTS:  an upgrade to her general discharge and separation code

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD 214 (Certificate of Release or Discharge from Active Duty)

FACTS:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20140021452 on 17 September 2015.

2.  The applicant states she received a JKK status with general under Honorable Conditions unjustly and was given the discharge without merit or reason.  

3.  The applicant provides a self-authored statement, which states she had two bad urinalysis tests, which ended her career in the Army.  It all started while stationed at Fort Benning, Georgia.  As a junior enlisted, young, attractive female, she had a problem with the officers in her unit having personal expectations of her while off duty.  She never had any interest in any of them, but was threatened by them through innuendos all the time.  After a short time of her not responding to them, she came up hot on two urinalysis test.  She believes when she was out with their friends, the officers were at the same establishments were spiking her drinks or food with illegal substances.  She never took part in any heavy drug partying or recreational drug use in her short time in the service.  She do not feel that the discharge or separation code was fair or just.  

4.  A review of the applicant’s service record shows:

	a.  She enlisted in the Regular Army on 7 August 2001.

	b.  On 24 October 2002 and 12 February 2003, her commander received notice that the applicant tested positive for Methamphetamine and D-Methamphetamine on            5 September 2002 and on 21 October 2002.  

	c.  On 23 April 2003, her immediate commander notified her that he was initiating a separation action against her under the provisions (UP) of Army Regulation (AR) 635-200, paragraph 14-12(c).  The reason for the proposed actions was for positive urinalysis for Methamphetamine and D-Methamphetamine on two occasions,                 5 September 2002 and 21 October 2002.  She also acknowledged receipt of this action.

	d.  On 23 April 2003, she consulted with legal counsel and was advised the basis for the contemplated action to separate her for misconduct under AR 635-200, chapter 14, and its effects, of the rights available to her, and the effect of any action taken by her in waiving her rights.  She acknowledged:

* she would submit a statement on her own behalf
* she waived her right to have her case considered by an administrative separation board
* she acknowledged she could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to her
* she also understands that if she receives a discharge which is less than honorable, she may apply to the Army Discharge Review Board and/or the ABCMR to upgrade her discharge; however, she realizes that consideration by either board does not imply that her characterization of service discharge would be upgraded
 
      e.  On 7 May 2003, consistent with the chain of command recommendations, the approval authority approved the separation under the provisions of AR 635-200, paragraph 12c and issued an Under Other Than Honorable Conditions Discharge Certificate.

	f.  The applicant was discharged from active duty on 27 May 2003.  Her DD Form 214 shows she was discharged under the provisions of AR 635-200, paragraph 14-12c with an Under Honorable Conditions (General) characterization of service.  She completed 1 year, 9 months and 21 days of net active service.

5.  On 17 September 2015, the Army Board of Correction of Military Records (ABMCR) determined the overall merits of her case were insufficient as a basis for correction, and denied her request for an upgrade.

6.  By regulation, separations under the provisions of AR 635-200, chapter 14 provides policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.

7.  The Board should consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance.
BOARD DISCUSSION:

After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted.  Based upon the short term of honorable service completed prior to multiple drug offenses and a lack of corroborating evidence to the applicant’s statement concerning how she tested positive during a urinalysis test, the Board concluded that the characterization of service received at the time of separation was appropriate.

BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

:	:	:	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 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.


REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.

2.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service. First time drug offenders in the grade of sergeant and above, and all Soldiers with three years or more of total military service, active and reserve, will be processed for separation upon discovery of a drug offense.  All Soldiers must be processed for separation after a second offense.

	b.  Paragraph 3-7a (Honorable Discharge) an honorable discharge is a separation with honor.  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.

	c.  Paragraph 3-7b (General Discharge) 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.

3.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence.  BCM/NRs may grant clemency regardless of the type of court-martial.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice.  This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority.  In determining whether to grant relief based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment.  Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization.




ABCMR Record of Proceedings (cont)	 AR20180001171


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