MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 20 May 2003
         DOCKET NUMBER: AR2002080238

         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. Joyce A. Wright		Analyst

The following members, a quorum, were present:

Mr. Melvin H. Meyer		Chairperson
Mr. Jose A. Martinez		Member
Ms. Deborah S. Jacobs		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 Separation Code of "JKQ" and Reentry (RE) Code of "3" be changed a more favorable code.

APPLICANT STATES: That since the Army Discharge Review Board (ADRB) agreed to change his character of service from "Under Honorable Conditions" to "Honorable" he thought that it would be fair to change his Separation Code and RE Code. He also states that he desires another chance and would like to enter the Army National Guard or Army Reserve. However, his Separation Code and RE Code prevents him from entering.

EVIDENCE OF RECORD: The applicant's military records show he enlisted on 5 November 1979, as a cavalry scout. He continued to serve through a series of continuous reenlistments. He was promoted to pay grade E-5 effective 3 August 1983.

On 7 March 1984, he was punished under Article 15, Uniform Code of Military Justice (UCMJ), for assault. His punishment consisted of a reduction to the pay grade of E-4.

He was promoted again to the pay grade of E-5/SGT effective 2 December 1984 and to the pay grade of E-6 effective 8 January 1987.

On 14 May 1991 the applicant participated in a command directed urinalysis in which he provided a urine sample that subsequently tested positive for cocaine.

On 6 September 1991, he was punished under Article 15, UCMJ, for wrongful use of cocaine, a controlled substance. His punishment consisted of a reduction to the pay grade of E-5, a forfeiture of pay, and 45 days restriction.

On 17 September 1981, the applicant was notified by his commander of his intentions to initiate action for separation under the provisions of Army Regulation 635-200, chapter 14, for misconduct, drug abuse. He based his reasons on the applicant’s wrongful use of cocaine.

After consulting with counsel on 19 September 1991, the applicant submitted a request for a conditional waiver in which he requested consideration of his case by a board of officers and representation by counsel because he was being considered for separation under other than honorable conditions.







He also elected to submit a statement in his own behalf in which he stated that he had approximately 12 years of service and completed many accomplishments. He also stated that he had two dependents and that his spouse was expecting. He was not proud of this incident, took full
responsibility for his actions, and was currently enrolled in Track I rehabilitation. He requested that he be discharged under honorable conditions instead of under other than honorable conditions in order to seek civilian employment to support his family.

On 20 September 1991, the commander submitted his recommendation to separate the applicant under the provisions of AR 635-200, paragraph 14-12c, misconduct-commission of a serious offense.

On 10 October 1991, the separation authority approved the recommendation for separation and directed that he be discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, with the issuance of a general discharge under honorable conditions. The applicant was discharged on 29 October 1991. He had completed 11 years, 11 months, and 25 days of creditable service.

Item 27 (Reenlistment Code) of the applicant’s DD Form 214 shows the entry "3" and item 26 (Separation Code) shows the entry "JKQ."

The applicant applied to the ADRB for an upgrade of his discharge on
15 March 2002. On 26 July 2002, the ADRB determined that his discharge was improper and inequitable and voted to change his character of service to "honorable" and narrative reason for separation to "misconduct" under the provisions of Army Regulation 635-200, paragraph 14-12c. His DD Form 214 was reissued to show his character of service as "Honorable" and his narrative reason as "Misconduct."

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, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a soldier discharged under this chapter.







Army Regulation 635-5-1, in effect at that time, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons. The regulation shows that the separation program designator (SPD) "JKQ", as shown on the applicant’s DD Form 214, is appropriate for discharge when the narrative reason for discharge is
"misconduct-commission of a serious offense" and that the authority for discharge under this SPD is "Army Regulation 635-200, paragraph 14-12c."

Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge. Army Regulation 601-210 covers eligibility criteria,
policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve. Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment. That chapter includes a list of
Armed Forces RE codes, including RA RE codes.

RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable. Certain persons who have received nonjudical punishment are so disqualified, as are persons with bars to reenlistment, and those discharged under the provisions of Chapter 9, 10, 13, 14, and 16 of Army Regulation 635-200.

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. The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors, which would tend to jeopardize his rights.

2. The type of discharge directed after modification by the ADRB and the reasons for that separation were appropriate considering all of the facts of the case.

3. The applicant was separated and assigned a Separation Code and RE Code in accordance with regulations. The applicant has also failed to show, through the evidence submitted with his application or the evidence of record, that the Separation Code of "JKQ" and RE Code of RE "3" issued to him were incorrect.

4. 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.

5. 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

__mm____ __jm____ __dj___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002080238
SUFFIX
RECON
DATE BOARDED	20030520
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	19911029
DISCHARGE AUTHORITY	AR 635-200 chapter 14-12c
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	4
2.
3.
4.
5.
6.