RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 April 2007
	DOCKET NUMBER:  AR20060012155 


	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. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Mr. John Meixell

Chairperson

Mr. Thomas Ray

Member

Ms. Rea Nuppenau

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 item 12f (Foreign Service) on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show he served 5 months in Saudi Arabia; and that item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) be corrected to show award of the Armed Forces Expeditionary Medal.  He also requests, in effect, that his separation code, reentry (RE) code, and narrative reason for separation be changed on this DD Form 214.

2.  The applicant states, in effect, that he recently had his case heard before the Army Discharge Review Board (ADRB) and was granted a fully honorable discharge.  He contends that during the ADRB process he was made aware of several inaccuracies on his DD Form 214.  He states that there is no indication of his service in Saudi Arabia or the award of the Armed Forces Expeditionary Medal.  He also states that he was separated under chapter 14, commission of a serious offense and his separation code should be “JKQ” with a RE code of 3.   

3.  In an email, dated 1 October 2006, the applicant states, in effect, that the specific circumstances of his discharge could have been processed under the provisions of Army Regulation 635-200, paragraph 14-12a (minor disciplinary infractions) or 14-12b (a pattern of misconduct) being that they were a combination of minor infractions.  He states that his separation code should be “JKA,” “JKN,” or “JKQ.”  He further states that the separation authority, separation code, and RE code on his DD Form 214 imply that he is a drug abuser.  

4.  In an email, dated 2 November 2006, the applicant states, in effect, that his command never imposed nonjudicial punishment upon him for his offense of marijuana use (a single offense); therefore, the appropriate actions of correcting his misconduct and allowing him a chance for rehabilitation were not taken.  He contends that he was discharged in an unusually expedient manner, that Army Regulation 635-200, paragraph 14-12c(2) did not warrant the mandatory separation of an enlisted member E-1 through E-4 with less than 3 years of service with a single drug offense, and that according to Army Regulation 600-85 he should have been referred to the Army Substance Abuse Program (ASAP) due to his positive urinalysis.  He points out that separation action was initiated against him for the reason of misconduct – commission of a serious offense not misconduct – abuse of illegal drugs.  He used marijuana once which was detected by urinalysis.  

5.  The applicant provides a copy of his DD Form 214; an Armed Forces Expeditionary certificate; a Certificate of Achievement; excerpts from the ADRB Proceedings; a Separation Program Designator Code Cross Reference Table; and a separation code designation chart. 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted on 9 January 1997 for a period of 3 years.  He trained as a unit supply specialist.     

2.  The applicant provided a certificate, dated 1 May 1998, which shows he received the Armed Forces Expeditionary Medal for service in Southwest Asia from 1 February 1998 to 15 June 1998 (a total of 4 months and 14 days).

3.  On 28 July 1998, nonjudicial punishment was imposed against the applicant for disobeying a lawful order.  His punishment consisted of a reduction to E-2 (suspended), a forfeiture of pay (suspended), extra duty, and restriction.  

4.  Between 1 October 1997 and 8 September 1998, the applicant was counseled on numerous occasions for failing the Army Physical Fitness Test (six times) and for having a positive urinalysis (marijuana).

5.  On 23 October 1998, as requested, a trial counsel thoroughly reviewed the administrative separation under the provisions of Army Regulation 635-200, chapter 14-12c pertaining to the applicant and found it legally sufficient.

6.  On 26 October 1998, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 14-12c, for misconduct (commission of a serious offense).  On 28 October 1998, the applicant consulted with counsel, acknowledged that he might encounter substantial prejudice in civilian life if a general discharge were issued, and he elected not to submit a statement on his own behalf.  On 3 November 1998, the separation authority approved the recommendation for discharge and directed the issuance of a general discharge.
 
7.  On 6 November 1998, the applicant was discharged with a general discharge under the provisions of Army Regulation 635-200, paragraph 14-12c(2), for misconduct (abuse of illegal drugs).

8.  Item 12f (Foreign Service on the applicant’s DD Form 214 shows the entry, “0000 00 00.”  His DD Form 214 does not show the Armed Forces Expeditionary Medal as an authorized award.  Item 25 (Separation Authority) on the applicant's DD Form 214 shows the entry, "AR [Army Regulation] 635-200, PARA [paragraph] 14-12C(2)."  Item 26 (Separation Code) on his DD Form 214 shows the entry, "JKK."  Item 27 (Reentry Code) shows the entry, “4.”  Item 
28 (Narrative Reason for Separation) on his DD Form 214 shows the entry, "MISCONDUCT." 

9.  On 15 March 2002, the ADRB denied the applicant’s request for a discharge upgrade.  On 10 August 2006, the ADRB upgraded the applicant’s discharge to honorable.  The ADRB determined that the reason for discharge was proper and equitable and voted not to change it.

10.  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 (paragraph 14-12a), a pattern of misconduct (paragraph 14-12b), commission of a serious offense (paragraph 14-12c), and convictions by civil authorities.  Paragraph 14-12c(2) of this regulation states that abuse of illegal drugs is serious misconduct and that separation action normally will be based upon commission of a serious offense.  This paragraph also states, in pertinent part, that other personnel (first-time offenders, grades E-1 to E-4) may be processed for separation as appropriate.  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.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  

11.  Paragraph 3-7b of Army Regulation 600-85 (Army Substance Abuse Program) states, in pertinent part, that the unit commander will refer individuals suspected or identified as alcohol and/or other drug abusers, including those identified through urinalysis (except those determined legitimate medical use by the Medical Review Officer) and/or blood alcohol tests, to the ASAP counseling center for screening.

12.  Army Regulation 635-5-1 (Separation Program Designator Codes) prescribes 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 states the reason for discharge based on separation code “JKK” is “Misconduct” and the regulatory authority is Army Regulation 635-200, paragraph 14-12c(2).  

13.  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 processing into the Regular Army 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.

14.  RE-4 applies to persons separated from their last period of service with a non-waivable disqualification.

15.  RE-3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable.

16.  The Separation Program Designator Code/Reentry Code Cross Reference Table, dated September 1993, shows that when the SPD [Separation Program Designator] is "JKK" then an RE code of 4 will be given.  

DISCUSSION AND CONCLUSIONS:

1.  The certificate provided by the applicant which shows he was awarded the Armed Forces Expeditionary Medal and that he served in Southwest Asia from 
1 February 1998 to 15 June 1998 is accepted as sufficient evidence on which to amend items 12f and 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) on his DD Form 214.

2.  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.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.  

3.  The applicant contended that he should have been referred to ASAP in accordance with Army Regulation 600-85.  He is correct.  That regulation does provide that guidance.  However, while it appears he was not referred to ASAP, nothing in Army Regulation 600-85 precluded his command from processing him for an administrative separation under the provisions of Army Regulation 635-200.  While it is also true he could have been processed for separation under paragraph 14-12a or possibly paragraph 14-12b, his command was within its rights to process him under paragraph 14-12c.

4.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 

5.  The applicant’s general discharge was upgraded by the ADRB on 10 August 2006.

6.  The applicant’s contentions were noted.  However, the narrative reason for separation, the separation code, and the RE code used in the applicant’s case are correct and were applied in accordance with the applicable regulations.
  
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

JM_____  _TR____  __RN____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial 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 by:

	a.  deleting the entry in item 12f on his DD Form 214;

	b.  adding the entry, “0000 04 14” in item 12f on his DD Form 214; and

	c.  adding the entry, “Armed Forces Expeditionary Medal” in item 13 on his DD Form 214.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to the separation code, RE code, and the narrative reason for separation.



_______John Meixell________
          CHAIRPERSON




INDEX

CASE ID
AR20060012155
SUFFIX

RECON

DATE BOARDED
20070417
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY
. .  
DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY

ISSUES         1.
100.0000
2.
107.0072
3.
100.0300
4.
110.0200
5.

6.