RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        23 November 2005
      DOCKET NUMBER:  AR20050001894


      I certify that hereinafter is recorded the true and complete record
of the proceedings 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. John Slone                    |     |Chairperson          |
|     |Mr. Patrick H. McGann, Jr.        |     |Member               |
|     |Mr. Larry J. Olson                |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his Reentry (RE) Code "4" be changed to RE
"3."

2.  The applicant states he was honorably discharged with a separation
program designator (SPD) Code of "JKK."  This separation code, the
applicant states can only be given a RE Code of "3" according to
regulation.  He admitted to experimenting with cannabis and never came up
positive on any drug screen.

3.  The applicant's request was forwarded for action under cover of a
letter to the Board from his Member of Congress (MOC).  In his letter to
the MOC, he stated that, during that period, he was questioned about
marijuana use that had come to his battalion commander's attention through
a female civilian whom obviously had it out for him.  When questioned, he
told the truth and said that he had indeed tried it several months before,
but that was it.  He was immediately given a urinalysis, which of course
came back negative.  During this period, a new battalion commander and
command sergeant major took over the unit and knew nothing about him nor
seemed interested in all of his accomplishments.

4.  The applicant told his MOC that, although many officers and non-
commissioned officers spoke to the new battalion commander in his behalf,
the applicant felt that the battalion commander was determined to discharge
him and to discharge him dishonorably.  He [the applicant] informed the
battalion commander there was no proof of his drug use and no type of
punishment could be administered.  The applicant related how he had sought
assistance from him [the Congressman].  The battalion commander was
determined to ruin his stellar career.

5.  The applicant stated the Adjutant General later conducted an
investigation of the unit, especially the battalion commander.  His
commander later inquired of the applicant why he did what he did by going
to his Congressman.  He informed his battalion commander that he would not
listen to him about the level of discharge he wanted to give him and that
he knew he was correct in saying that he could not dishonorably discharge
him.  The battalion commander later informed the applicant that he would do
everything possible to ensure that he would never serve in the military
again.  According to the applicant, he did just that.  He issued him an SPD
and RE Code that was for Soldiers who had received Article 15’s, letters of
reprimands, downgraded in rank, loss of pay or even prison time; none of
which he had received.



6.  He also states that in this time of need for the military, he is
attempting to re-enter the military.  He interviewed with the command of
the 128th Infantry Regiment.  They want him in their unit as much as he
wants to be a part of it.  His outstanding credentials as a leader and a
follower mean nothing with the codes that were issued to him.  His anger
about being investigated because of his own ignorance is keeping an
outstanding Soldier out of where he belongs; besides his comrades in war
and peace.  Here is one, he states, that is qualified beyond many of his
peers and wishes nothing more than to serve next to his comrades.  He does
not think that he is more special or deserves special treatment; however,
he has tried the process of changing his military records and the process
did not work and took over a year to tell him that they could not do it.
He found that not acceptable.  He states he needs to get in front of
somebody who will listen and can do something about it.  He needs to be
heard.  They need to hear him in person, not on paper, and that paper did
not seem to cut it.  He has already proven that he is wanted and needed by
talking to senior officials of the 128th Infantry Regiment.  He asks his
MOC for assistance one more time.  The military needs him and he needs it.
He served honorably once before and will serve honorably again.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 30 August 1996, the date of his discharge.  The application
submitted in this case is dated 9 February 2005.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant’s military records show he enlisted in the North Dakota
Army National Guard (NDARNG) on 1 March 1990, as a combat engineer (12B),
in the pay grade of E-3, for a period of 8 years.  He was ordered to active
duty for training (ADT) on 24 May 1990 and was released from ADT on
30 August 1990.  He continued to serve in the NDARNG until he was honorably
discharged on 8 April 1991, so that he could enlist in the Regular Army
(RA).



4.  The applicant enlisted in the RA on 9 April 1991, as a signal support
systems specialist (31U), for a period of 4 years, with an established
expiration of term of service (ETS) of 8 April 1995.   He was promoted to
sergeant (SGT/E-5) effective 1 January 1994.  He reenlisted in the RA on
14 December 1994 for a period of 2 years with an established ETS of
13 December 1996.

5.  The applicant underwent a separation medical examination on 30 July
1996, and was found qualified for separation.

6.  The applicant underwent a mental status evaluation on 31 July 1996,
which determined that he possessed sufficient mental capacity to understand
and participate in administrative or judicial proceedings.  It indicated
that he was alert, oriented, and that his thought process was clear.  The
remarks sections of his evaluation indicated that he was evaluated at the
commander's request and was psychiatrically cleared for any administrative
action deemed appropriate by his command.

7.  On 1 August 1996, the applicant was counseled by his first sergeant.
The first sergeant told him he was aware that he had informed the commander
that he had used cocaine during the time period of February through April
1996.  The first sergeant informed him that illegally using drugs was a
violation of the Uniform Code of Military Justice (UCMJ), that it could
result in his separation from the service for misconduct, and that use of
drugs would not be tolerated by the command.

8.  On 9 August 1996, the applicant consulted with counsel who prepared a
memorandum for the battalion commander, 2nd Battalion, 75th Ranger
Regiment, Subject:  Separation pursuant to Army Regulation 635-200, chapter
14.  He stated he was writing this memorandum in his capacity as counsel
for the applicant, a Soldier under his command.  He stated the battalion
commander had initiated paperwork to separate the applicant from the
military pursuant to Army Regulation 635-200, chapter 14.  He stated the
applicant had requested separation pursuant to Army Regulation 635-200,
chapter 16, for failure to overcome a locally imposed bar to reenlistment,
which is unavailable for review.

9.  The applicant's attorney stated that, as counsel with an obligation to
make certain that the command of his client abides by all of the
appropriate regulations separating him from the military, it was his
opinion a separation under chapter 14 (major misconduct) would be a
violation of Army Regulation 600-85 (ADAPC-Army's Alcohol and Drug Abuse
Prevention and Control Program (ADAPCP).  Counsel stated that all of the
information the applicant’s command had regarding drug use was "limited
use" evidence, as defined in paragraph 6-4, of Army Regulation 600-85.  The
applicant self "referred" himself numerous times, once to his command and
several times to the unit chaplain.  The command and the chaplain failed to
refer the applicant to ADAPCP, which was required by Army Regulation 600-
85, Chapter 3, Paragraphs 3-7 and 3-8.

10.  Counsel also stated that Army Regulation 635-200 does not specifically
provide for separation under the major misconduct chapter, using solely
limited use information.  However, such a separation would directly
conflict with the ADAPCP policies, which work in conjunction with the
separation regulation.  Separating the applicant pursuant to the major
misconduct chapter would be contrary to several Army regulations and
policies.  He concluded by stating that the best way in which to "protect
the record" in this case from future action would be to allow the applicant
to leave the military under chapter 16, of Army Regulation 635-200 (failure
to overcome a bar to reenlistment).

11.  On 12 August 1996, the applicant’s commander notified the applicant
that he was initiating action to separate him from the service under the
provisions of Army regulation 635-200, chapter 14-12c(2), for commission of
a serious offense. He based his reason on the applicant’s wrongful use of
cocaine between the dates of 1 February through 31 March 1996.

12.  The applicant’s records contain no derogatory information.

13.  On 14 August 1996, the applicant consulted with counsel and waived his
rights.  He elected not to submit a statement in his own behalf.

14.  On that same day, the commander submitted his recommendation for the
applicant’s discharge to the battalion commander, a lieutenant colonel
(LTC/O-5), of the 2nd Battalion, 75th Ranger Regiment, then to the
Commander, I Corps & Fort Lewis.  The applicant’s discharge was approved on
19 August 1996 by the battalion commander.  He was issued an honorable
discharge.  The applicant was discharged on 30 August 1996.  He had a total
of 5 years, 7 months, and 29 days of creditable service.  He was issued an
RE Code of "4" and a SPD Code of "JKK."

15.  Item 12b (Separation Date This Period), of his DD Form 214, dated
30 August 1996, shows the entry "1996 08 30" (30 August 1996) as his
separation date.





16.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Section III of the regulation pertains
to authority to order and accomplish separation.  Paragraph 1-19 cover the
authority to order separation prior to expiration of term of service (ETS).
 Subparagraph 1-19c states, in pertinent part, that commanders who are
special court-martial convening authorities are authorized to order the
separation or release from active duty (AD) or ADT under chapter 14 when
discharge under other than honorable conditions is not warranted and the
notification procedure is used.  An honorable discharge may be ordered only
when the commander exercising general court-martial jurisdiction has
authorized the separation.

17.  Chapter 5 of that regulation provides authorization for separation for
the convenience of the government.  Paragraph 5-1 states that Soldiers will
be awarded a character of service of honorable, under honorable conditions,
or an uncharacterized description of service if in entry-level status.

19.  Paragraph 5-3 states that separation under this paragraph is the
prerogative of the Secretary of the Army.  Secretarial plenary separation
authority is exercised sparingly and seldom delegated.  It is used when no
other provision of this regulation applies, and early separation is clearly
in the best interest of the Army.  Separation under this paragraph are
effective if approved in writing by the Secretary of the Army or the
Secretary's approved designee as announced in updated memorandums.  The
discharge or release of any enlisted member of the Army for the convenience
of the government will be at the Secretary’s discretion.

19.  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.

20.  Paragraph 14-12c(2) provides for separation for commission of a
serious offense such as abuse of illegal drugs.  

21.  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.

22.  RE-4 applies to persons not qualified for continued service by virtue
of being separated from the service with non-waivable disqualifications
such as misconduct.

23.  RE-3 applies to persons not qualified for continued Army Service, but
the disqualification is waivable.  Certain persons who have received
nonjudicial punishment are also 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. 

24.  RE-1 applies to persons completing their term of service (ETS) who are
considered qualified to reenter the Army.

25.  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) "JKK", 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, abuse of illegal drugs" and
that the authority for discharge under this SPD is "Army Regulation 635-
200, chapter 14, paragraph 14-12c(2)."  The SPD code of "JFF" is
appropriate for involuntary release from active duty when the narrative
reason for separation is "Secretarial Plenary Authority."

26.  The SPD/RE Code Cross Reference Table provides instructions for
determining the RE code for Active Army Soldiers and Reserve Component
Soldiers separated for cause.  It also shows the SPD code with a
corresponding RE code and states that more than one RE code could apply.
The Soldier’s file and other pertinent documents must be reviewed in order
to make a final determination.  The SPD code of "JKK" has a corresponding
RE code of "4" that is determined by appropriate authorities directing the
change.  The SPD Code of "JFF" has a corresponding RE Code that is
determined by appropriate authorities directing the change.



27.  Army Regulation 600-85 prescribes policies and procedures needed to
implement, operate, and evaluate the Army Alcohol and Drug Abuse Prevention
and Control Program (ADAPCP).  It states, in pertinent part, that the
applicant’s rehabilitation progress will provide the commander with an
overall impression of the applicant’s progress in the ADAPCP.  It also
states that when the commander determines that duty performance and
progress is unsatisfactory and cannot justify further rehabilitation
efforts in a military environment, discharge from the military service will
be affected.  It further states that ADAPCP services would continue to be
provided until the client is separated and that enlisted soldiers
identified as illegally abusing drugs would be processed for separation in
accordance with AR 635-200.

28.  Paragraph 3-7 pertains to responsibilities of commanders for referral.
 It states that when individuals are identified, voluntarily or
involuntarily, as possible alcohol or other drug abuser, their unit
commander or designated representative will:

      (a) advise them of their rights under Article 15, UCMJ.  Use of DA
Form 3881 (Rights Warning Procedure/Waiver Certificate) is strongly
recommended;

      (b) explain the provisions of the limited use policy;

      (c) interview them and inform them of the evidence;

      (d) give them the opportunity to provide additional evidence,
including information on drug sources, if they desire (However, such
disclosure is strictly voluntary and will not be made a requirement for or
any part of treatment or rehabilitation); and

      (e) collect any illegal drugs or drug paraphernalia that the Soldier
voluntarily relinquishes and turn them over to the local Provost Marshal.

29.  The unit commander will refer individuals suspected or identified as
alcohol and/or other drug abusers, including those identified through
urinalysis and blood alcohol tests.  All individual with urine positives
will be referred to the ADAPCP for initial screening.  Medical evaluation
by a physician is required unless the urine positive is for THC alone.
Soldiers with blood alcohol levels of .05 percent or above while on duty
will be referred to the ADAPCP for screening and evaluation.  Soldiers who
are referred by the unit commander for an initial interview, regardless of
the means of identification, will be referred using the



Military Client Referral and Screening Record.  This document must be
signed by the commander.  The initial screening interview will be
accomplished by the ADAPCP staff at the earliest opportunity (not to exceed
4 working days) with emergency referrals receiving priority.

30.  A limited use policy that restricts the consequences of the Soldier's
involvement in the ADAPCP is described in chapter 6, that the commander
must sign.

31.  Paragraph 3-8 pertains to self referrals.  It states that the clinical
staff will conduct an initial interview with all eligible personnel who
self-refer to the ADAPCP counseling center for assistance.  During the
initial interview, the clinician will advise soldiers of their unit
commander's role in the rehabilitation process, and provide information
about the ADAPCP.  The commander will be part of the rehabilitation program
and will be directly involved in the decision of whether rehabilitation is
required.  The commander will also provide recommendations for the
appropriate rehabilitation track and establish standards of behavior and
goals for evaluation of the Soldier's progress in rehabilitation and in the
unit.  The ADAPCP staff will contact the commander and coordinate the
Soldier's referral, if ADAPCP services are rendered.  After coordination
with the Soldier's commander, the referral is processed in the same manner
as any other command referral; however, the type of referral will be
annotated on the ADAPCP Military Client Referral and Screening Record as a
self referral.

32.  Paragraph 6-4 pertains to the limited use policy.  It states in
pertinent part, that this policy prohibits the use of the following
evidence against a Soldier in actions under the UCMJ or on the issue of
characterization of service in separation proceedings: (1) mandatory urine
or alcohol breath test results taken to determine a Soldier's fitness for
duty and the need for counseling, rehabilitation, or other medical
treatment or in conjunction with a Soldier's participation in ADAPCP; (2) a
Soldier's self-referral to ADAPCP; and
(3) information concerning drug or alcohol abuse occurring prior to the
date of initial referral to ADAPCP.

DISCUSSION AND CONCLUSIONS:

1.  The applicant stated that he was questioned about the use of marijuana
during the period in question and he told the truth that he indeed tried it
several months before.  He was immediately given a urinalysis which came
back negative.  His new battalion commander took over and knew nothing
about and was not interested in his accomplishments.

2.  The applicant felt that the battalion commander was determined to
discharge him and to discharge him dishonorably.  He informed him of this
and that there was no proof of drug use and that no type of punishment
could be administered. He sought assistance from his Congressman.

3.  An investigation was conducted by the AG on the applicant's unit and
battalion commander.  The commander inquired to the applicant as to why he
did what he did by going to his Congressman.  He informed the battalion
commander that he would not listen to him about the level of discharge that
he was seeking.  The battalion commander informed the applicant that he
would do everything possible to ensure that he would never serve again.

4.  The applicant was counseled by his first sergeant regarding the
statement he made to the commander, that he had used cocaine during the
period February through April 1996.  He was informed on the consequences of
using illegal drugs.

5.  The applicant consulted with counsel who prepared a memorandum for the
battalion commander.  Counsel stated that the battalion had initiated
paperwork to separate the applicant from the military pursuant to Army
Regulation 635-200, chapter 14.  The applicant had also requested
separation pursuant to Army Regulation 635-200, chapter 16, for failure to
overcome a locally imposed bar to reenlistment, which was unavailable for
review.

6.  Counsel informed the battalion commander that it was his obligation to
ensure that the command abided by all the appropriate regulations
separating the applicant from the military.  It was his opinion that
separation under the provisions of Army Regulation 635-200, chapter 14,
would be in violation of Army Regulation 600-85, ADAPCP.  Counsel stated
that all of the information that the command had regarding drugs use was
"limited use" evidence, as defined in Army Regulation 600-85.

7.  Counsel stated that the applicant self "referred" himself numerous
times, once to his command and several times to the unit chaplain.
However, the command and the chaplain failed to refer the applicant to
ADAPCP, which was required by Army Regulation 600-85.  Counsel also stated
that Army Regulation 635-200 did not specifically provide for separation
under the major misconduct chapter, using solely limited use information.
Such a separation would directly conflict with ADAPCP polices, which work
in conjunction with the separation regulation.  Counsel further stated that
separating the applicant pursuant to the major misconduct chapter would be
contrary to several Army regulations and polices.  Counsel concluded that
the best way in which to "protect the record" in this case from future
action would be to separate the applicant under Army Regulation 635-200,
chapter 16.
8.  Separation proceedings were initiated against the applicant under the
provisions of Army Regulation 635-200, chapter 14-12c(2), for commission of
a serious offense which was based on his wrongful use of cocaine between
the dates of 1 February and 31 March 1996.  His records contained no
derogatory information.  He consulted with counsel, waived his rights, and
elected not to submit a statement in his behalf.  His separation was
approved by the battalion commander, a LTC/O-5, of the 2nd Battalion, 75th
Ranger Regiment.

9.  The applicant was discharged under the provisions of Army Regulation
 635-200, chapter 14-12c(2), for misconduct.  He was issued an SPD Code of
"JKK" with a corresponding RE Code of "4", which was consistent with his
basis for separation.  His records contained no derogatory information.

10.  According to applicable regulation, commanders who are special court-
martial convening authority are authorized to order separation or release
from AD or ADT under chapter 14, when under other than honorable conditions
is not warranted.  An honorable discharge may be ordered when the commander
exercising general court-martial jurisdiction has authorized the
separation.  However, the approving authority for the applicant's honorable
discharge was a LTC/O-5 who was not the general court-martial convening
authority.

11.  There was no reason for the applicant's discharge and he was never
referred for enrollment in a drug treatment program by his command
according to regulation.  When his command violated the limited use policy,
it was locked into the issuance of an honorable discharge.

12.  The overall evidence clearly shows that there were improprieties in
the applicant's case and his separation and issuance of an honorable
discharge under the provisions of the regulation used as the authority
should have been approved by the first commander exercising general court-
martial jurisdiction.

13.  The evidence shows that the command was given guidance that the
applicant should not have been recommended for separation for drug use but
decided to ignore the advice; thus, the incorrect provisions of the
separation regulation were used.  The narrative reason and attendant RE
Code is incorrect given the circumstances of his case.  There is no
physical evidence or other evidence that the applicant used illegal drugs.
It is apparent command relied on a report made by an acquaintance of the
applicant and his admission.





14.  In view of the circumstances of this case, and in the interest of
justice, it would be appropriate to show that he was honorably discharged
at his scheduled ETS date of 13 December 1996; that he receive all back pay
and allowances in the pay grade of E-5 from 31 August to 13 December 1996;
and that item 25 (Separation Authority) be changed from "AR 635-200,
Paragraph 14-12c(2) to
AR 635-200, Paragraph 5-3."  Therefore, it would also be appropriate to
change item 26 (Separation Code) to show the entry "JFF", item 27 (Reentry
Code) to show the entry "1", and item 28 (Narrative Reason for Separation)
to show the entry "SECRETARIAL PLENARY AUTHORITY" on his DD Form 214.

BOARD VOTE:

_JS_____  _PM____  _LJO___   GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief and to excuse failure to timely file.  As a
result, the Board recommends that all Department of the Army records of the
individual concerned be corrected:

      a.  by showing the entry "1996 12 13" in item 12b, of the applicant's
DD 214;

      b.  by showing the entry "AR 635-200, Paragraph 5-3" in item 25
(Separation Authority), of the applicant's DD 214;


      c.  by showing the entry "JFF" in item 26 (Separation Code), of the
applicant's DD 214;


      d.  by showing the entry "1" in item 27 (Reentry Code), of the
applicant's DD 214;

      e.  by showing the entry "Secretarial Plenary Authority" in item 28
(Narrative Reason for Separation) of the applicant's DD Form 214; and

      f.  by directing the Defense Finance and Accounting Service to audit
the applicant's military pay account and provide all back pay and
entitlements to which the applicant is entitled from the date of his
separation to his normally scheduled ETS of 13 December 1996, had he not
been erroneously separated.




                                  ____    John Slone__   __
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050001894                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051123                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |19960830                                |
|DISCHARGE AUTHORITY     |AR 635-200, chapter 14-12c(2)           |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |100                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |

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