RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 March 2007
	DOCKET NUMBER:  AR20060010632 


	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. Gerard W. Schwartz

Acting Director

Ms. Anita McKim-Spilker

Analyst

The following members, a quorum, were present:


Mr. Thomas M. Ray

Chairperson

Mr. Jeffrey C. Redmann

Member

Mr. James R. Hastie

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, in effect, that his reentry (RE) code and separation designator (SPD) code be changed to allow enlistment in the Army.  

2.  The applicant states, in effect, that he is seeking enlistment in the Texas Army National Guard; however, he will proudly serve wherever the Army needs him.  He believes his discharge was unjust because the Army did not address his alcohol behavior with modern standards and practices.  He was not given the opportunity for treatment or rehabilitation prior to his separation, nor was he ordered to attend a drug treatment program when he tested positive for marijuana.  

3.  The applicant provides a copy of his Army Achievement Medal; a copy of a Certificate of Achievement; a self-authored statement; letters of recommendation from friends; and a copy of his letter requesting the support of his congressman.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 24 July 1989, the date of his discharge from the Army.  The application submitted in this case is dated 19 July 2006.

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 On 13 February 1989, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully possessing more than one ration card.  His punishment consisted of a forfeiture of $349.00 pay per month for two months and 45 days of extra duty and of restriction.

3.  On 1 April 1987, the applicant enlisted in the Regular Army for a period of four years.  He was 18 at the time of his enlistment.  He was trained in, awarded, and served in military occupational specialty (MOS) 63H (Track Vehicle Repairer).  



4.  The applicant attained the rank of private first class/E-3 and received the Army Achievement Medal and the Army Service Ribbon. 

5.  A DA Form 4465 (Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) Intake/Screening Record), shows the applicant self-referred and was enrolled in Track II on 25 August 1988.  The applicant indicated that he was enrolling based on marijuana use.  He also reported that he used alcohol and marijuana daily, and that he had also used cocaine and other hallucinogens.  Because the applicant self-referred to ADAPCP the information he provided at intake was protected by the limited use policy and was not used in his discharge proceedings.

6.  On 20 December 1988, the applicant was issued a General Officer Letter of Reprimand for being apprehended by the military police for driving a motor vehicle on post with a blood alcohol content of .18. 

7.  On 14 June 1989, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice for wrongful use of marijuana.  His punishment consisted of a reduction to private/E-1, a forfeiture of $349.00 pay per month for two months, and 45 days of extra duty.  

8.  On 28 June 1989, the unit commander notified the applicant of initiation of separation action under the provisions of chapter 14-12c of Army Regulation 635-200 (Enlisted Personnel Separations) by reason of misconduct - commission of a serious offense, wrongful and unlawful use of drugs, with a general, under honorable conditions discharge.  

9.  On 29 June 1989, the applicant consulted with legal counsel and elected not to submit a statement in his own behalf.  The intermediate commanders recommended he be separated with a general, under honorable conditions discharge.

10.  On 12 July 1989, the separation authority waived a rehabilitation transfer and directed the applicant be discharged with a general, under honorable conditions discharge.

11.  On 24 July 1989, the applicant was discharged by reason of misconduct – abuse of illegal drugs after completing 2 years, 3 months, and 24 days of active military service.  He was assigned an RE code of RE-3, and an SPD of "JKK."


12.  The applicant submitted a self-authored statement indicating that in light of the continuing Global War on Terror, he feels the call to serve, and that he is disheartened by being repeatedly turned away at recruitment stations for his poor decision-making and immaturity when he was a young adult.  He indicates that because of his RE code and SPD he cannot make an honest retribution for his early wrong doings or fulfill his obligation to the Army.  He can confidently say that he has matured and can now serve his country honorably.  

13.  The applicant submitted a copy of a request he submitted through his congressman requesting his congressional support to encourage an upgrade of his discharge.

14.  The applicant provided a letter of support from his county commissioner recommending a discharge upgrade.

15.  The applicant provided a recommendation from his former manager at Barksdale Control Products indicating that the applicant was a successful lead person, managing the activities of others, maximizing crew efficiency and completing projects on time.  He attests that the applicant proved to be his most valuable employee.

16.  The applicant provided a letter of support from the Assistant Maintenance Services Administrator, Public Works, City of Glendale, indicating the applicant possesses a wide range of technical skills and diverse career experiences that make him a valuable employee.  He is professional, diligent, and thorough in completing tasks and assignments, and has top-notch customer service skills.  

17.  The applicant provided a reference letter from a friend and co-worker who has known the applicant for 10 years.  He indicates the applicant is trustworthy, honest, is a hard worker, and a good friend.   

18.  The applicant provides a letter of support from a friend he has known for 30 years.  He indicates the applicant owns and operates a small business.  He is a committed family man who honors his word and will not let anyone down.

19.  Army Regulation 635-200 (Enlisted Separations) 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 and patterns of misconduct such


as frequent incidents of a discreditable nature with civil or military authorities, commission of a serious offense, and desertion or absence without leave.  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.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies and procedures for enlistment and processing into the RA and the U.S. 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 1 and 
2 permit immediate reenlistment if all other criteria are met.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  An RE code of 4 indicates separation from the last period of service with a disqualification which cannot be waived and ineligibility for reenlistment.

21.  Army Regulation 635-5-1 (Separation Program Designator Codes), then in effect, provided the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), AR 635-5-1 (Separation Documents) established RE Codes to be assigned for each SPD.  

22.  A separation code of "JKK" applies to persons who are separated by reason of misconduct – abuse of illegal drugs under the provisions of chapter 14-12c, Army Regulation 635-200.  Table 2-3 shows that an RE code RE-3 was the appropriate RE code to be assigned for an SPD of "JKK." 

DISCUSSION AND CONCLUSIONS:

1.  Contrary to the applicant's contentions, he was enrolled in Track II of the ADAPCP.  He self-referred and voluntarily entered the ADAPCP in August 1988. After consultation with a drug and alcohol abuse counselor and enrollment in the program, he received a GOLOR for driving under the influence and he received NJP for using marijuana.  The applicant, by violating the Army's policy not to possess or use illegal drugs, compromised the trust and confidence placed in a Soldier.  The applicant, as a Soldier, had the duty to support and abide by the Army's drug policies.  By abusing illegal drugs, the applicant knowingly risked a military career.  

2.  The applicant also contends that he was young and immature.  However, the Board found no evidence that the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

3.  The evidence of record shows that the command attempted to assist the applicant in performing and conducting himself to Army standards by providing counseling and by the imposition of NJP.  The applicant failed to respond appropriately to these efforts.

4.  The applicant's RE code is based on his reason for discharge and cannot be changed unless the applicant's narrative reason for discharge is changed.  His narrative reason for discharge was based on his failure to successfully complete an Army Substance Abuse Program, and the Board could find no basis upon which to change this reason.  

5.  The carefully considered the letters of recommendation and support submitted by the applicant and noted his successful transition to civilian life.  However, these letters do not provide a basis to change the applicant's narrative reason for discharge, his RE code, or his SPD code.

6.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.

7.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 24 July 1989; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
23 July 1992.  The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__tmr___  __jcr___  __jrh___  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.



							Thomas M. Ray
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20060010632
SUFFIX

RECON

DATE BOARDED
20070301
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
110.0300
2.

3.

4.

5.

6.