MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 24 September 2002
         DOCKET NUMBER: AR2002070314

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Ms. Rosa M. Chandler		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Kenneth W. Lapin		Member
Mr. Donald P. Hupman, Jr.		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: That his DD Form 214 (Certificate of Release or Discharge From Active Duty) be corrected by changing Block 26 (Separation Code) and Block 28 (Narrative Reason for Separation) to something that will improve his opportunity for employment. In effect, he is asking that his narrative reason for separation be changed to "Secretarial Authority" and his separation code be changed to "LFF."

APPLICANT STATES: In a 2-page letter to the Board, that his under other than honorable conditions (UOTHC) discharge was upgraded to a general discharge (GD) under honorable conditions by the Army Discharge Review Board (ADRB). He believed that his new discharge would not be an impediment to employment, however, when he attempted to obtain a position with the Brazos County (Texas) Sheriff's Department, he was turned down because of his separation code (JKQ) and narrative reason for separation (Misconduct). He said that even though the characterization of his service has been upgraded, the Army is still punishing him through the use of codes that are confusing to employers. The sheriffs department thought that the separation code "JKQ" meant that he had not paid "child care expenses."

EVIDENCE OF RECORD: The applicant's military records show:

He enlisted in the US Army Reserve for 8 years on 29 December 1984. He was trained as a supply specialist and promoted to the rank of Specialist (SP4/E-4) on 11 December 1987. On 23 July 1988, he entered the Active Guard Reserve (AGR) program. Following completion of all required military training, he was assigned to the 7th Squadron, 6th Cavalry Regiment, Conroe, Texas.

The applicant's duty performance as an AGR soldier was acceptable during his first year. However, in 1989, he began using illegal drugs and was hospitalized in St. Joseph's Hospital, Bryan, Texas, for a drug overdose on 17 July 1989. He was transferred to Wilford Hall US Air Force Medical Center, Lackland Air Force Base, San Antonio, Texas, where he remained until he was returned to duty on 1 August 1989. On 30 August 1989, he was readmitted to Wilford Hall for drug rehabilitation. On 2 September 1989, he was transferred to William Beaumont Army Medical Center, El Paso, Texas, where he underwent drug rehabilitation. He completed treatment and was returned to duty on 13 October 1989 with instructions to participate in local substance abuse treatment programs.

The applicant was absent without leave (AWOL) from 13-16 March 1990. When he returned from AWOL, he tested positive again for cocaine use during a drug screening on 19 March 1990.

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On 11 December 1990, the applicant's commander officially notified him that he was being recommended for a UOTHC discharge under the provisions of chapter 14, Army Regulation 635-200, for misconduct -- commission of a serious offense. The bases cited for the commander's recommendation were the applicant's above period of AWOL from 13-15 March 1990, his failure to actively participate in an Alcoholic's Anonymous/Narcotics Anonymous Program as outlined in his rehabilitation program, and that he tested positive for cocaine use in a drug screening on 19 March 1990. The applicant was advised of the rights available to him, to include the right to seek legal representation and to have his case heard before a board of officers.

On 13 December 1990, the applicant consulted with legal counsel. He was advised of the nature of the contemplated separation action and its effects, and he was again advised of the rights available to him. He acknowledged that he understood that a UOTHC discharge would make him ineligible for many or all benefits as a veteran under both Federal and State laws and that he could expect to encounter substantial prejudice in civilian life. He requested a personal appearance before a board of officers and he did not submit a statement.

On 28 May 1991, the applicant was notified that a board of officers would convene on 18 June 1991 to determine whether he should be separated from the AGR program and released from active duty for misconduct under the provisions of chapter 14, Army Regulation 635-200 due to being AWOL and use of an illegal drug.

On 18 June 1991, the applicant appeared with a legal representative before the board of officers. On the same date, the board of officers concluded that the applicant did commit misconduct by being AWOL, by failing to actively participate in an Alcoholic's Anonymous/Narcotic's Anonymous Program as instructed, and by testing positive for cocaine. Therefore, the board of officers recommended that he be separated with a UOTHC discharge.

On 31 July 1991, the final approval authority approved the recommendations and directed that the applicant be separated with a UOTHC discharge due to misconduct-commission of a serious offense.

The applicant's DD Form 214 shows that he was separated on 2 August 1991. He had completed 3 years and 6 months of creditable active military service on the period of enlistment under review and he had completed 3 years, 2 months and 22 days of prior inactive service. He also had 3 days of lost time due to being AWOL. He was assigned a Separation Code of "JKQ" and a Reentry Eligibility (RE) Code of RE-3B. His narrative reason for separation was listed as "MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE."



The applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade. The ADRB, after considering his case on 26 July 2000, approved his request in part. The ADRB determined that the applicant was properly discharged, but not equitably discharged. Therefore, the applicant’s discharge was upgraded to a General Discharge under honorable conditions under the provisions of Army Regulations 635-200 and the narrative reason was changed to "MISCONDUCT" under current standards. His rank was also restored to specialist/pay grade E-4. His separation code remained "JKQ."

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absences 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 a UOTHC discharge is normally considered appropriate, but a GD under honorable conditions or an honorable discharge may be granted.

The separation code "JKQ" indicates that applicant was separated due to misconduct - commission of a serious offense (abuse of illegal drugs).

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

2. The applicant was a drug abuser. He was afforded the opportunity to participate in an inpatient drug treatment program. When he was released from the treatment program, he was directed to participate in a local substance abuse program like Alcoholic's Anonymous/Narcotic's Anonymous. He failed to participate in a local program, went AWOL, and used an illegal substance (cocaine).

3. The applicant's chain of command initiated action to separate him for misconduct under the provisions of chapter 14, AR 635-200. His case was presented to a board of officers who recommended that he be separated with a UOTHC discharge. The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

4. The ADRB found the applicant's characterization of service inequitable and recommended that it be upgraded to general under honorable conditions. The ADRB, under current standards, also changed the narrative reason for separation from "MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE" to simply "MISCONDUCT." That board did not, however, find the reason, or its corresponding separation code inequitable.

5. In view of the circumstances in this case, both the assigned separation code and the narrative reason for separation were, and still are, appropriate. The applicant has submitted no evidence that these codes are in error or should be changed.

6. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__aao___ __kwl___ __dph___ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2002070314
SUFFIX
RECON
DATE BOARDED	20020924
TYPE OF DISCHARGE	(GD)
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	100.0000
2.
3.
4.
5.
6.