RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        2 October 2007
      DOCKET NUMBER:  AR20070006522


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Ann M. Campbell               |     |Chairperson          |
|     |Ms. LaVerne M. Douglas            |     |Member               |
|     |Mr. Jeffrey C. Redmann            |     |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 general, under honorable
conditions discharge (GD) be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that all he has ever wanted to do is
serve his country in the military.  He states that he knows he abused the
privilege and paid a heavy price for it.  He claims he was a good Soldier
that made a stupid mistake that he wishes he could take back more than
anything.  He claims that since being discharged, he has worked hard in
school and at his job, and is now completing college courses to become a
respiratory therapist.  He is asking to have his discharge changed so he
can again serve his country in the military.  He knows he can be an asset
and he confirms he will not make a poor judgment like before.  He states he
has had no incidents since being discharged and has been striving to meet
his goals.  He claims that serving in the military is his highest goal and
after 9/11, his friends have served fighting for our country and democracy.
 He only wishes he could do the same.  He states that it is his hope to
have his discharge upgraded in order to get a waiver that would allow his
reentry into the military.

3.  The applicant provides no additional documentary evidence in support of
his application.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the
Army Board for Correction of Military Records (ABCMR) to excuse an
applicant’s failure to timely file within the 3-year statute of limitations
if the ABCMR determines it would be in the interest of justice to do so.
While it appears the applicant did not file within the time frame provided
in the statute of limitations, the ABCMR has elected to conduct a
substantive review of this case and, only to the extent relief, if any, is
granted, has determined it is in the interest of justice to excuse the
applicant’s failure to timely file.  In all other respects, there are
insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military record shows he enlisted in the Regular Army
and entered active duty on 30 May 1990.  He was trained in and awarded
military occupational specialty (MOS) 11B (Infantryman), and private first
class (PFC) is the highest rank he attained while serving on active duty.

3.  The applicant's record documents no acts of valor, significant
achievement, or service warranting special recognition.  It does show that
on 7 November 1991, the applicant accepted non-judicial punishment (NJP)
under the provisions of Article 15 of the Uniform Code of Military Justice
(UCMJ) for wrongfully using cocaine.  His punishment for this offense was a
reduction to private/E-1 (PV1), forfeiture of $380.00 a month for two
months, and 45 days of extra duty and restriction.

4.  On 28 January 1992, the unit commander notified the applicant he was
initiating action to separate him under the provisions of Paragraph 14-12c,
Army Regulation 635-200, by reason of commission of a serious offense based
on his positive urinalysis.  The unit commander informed the applicant he
was recommending he receive a GD.

5.  On 31 January 1992, the applicant after having been advised of the
basis for the contemplated separation action by consulting counsel, waived
his right to counsel and submitted a statement in his own behalf.  In his
statement, he indicated that he believed his discharge should be upgraded
to an HD because he only made one mistake during his military career.  He
stated that it did not seem fair that he should get a less than fully
honorable discharge.  He indicated that he would like to better himself and
society and realized what he did was wrong and he stated he would never
make the mistake again.  He stated that all he wanted was a fair shot at
getting a job.  He further indicated that he hoped to one day join the
National Guard in his State and to continue his job in the military.

6.  On 4 February 1992, the separation authority approved the applicant's
separation under the provisions of Paragraph 14-12c, Army Regulation 635-
200, and directed he receive a GD.  On 25 February 1992, the applicant was
discharged accordingly.

7.  The separation document (DD Form 214) issued to the applicant upon his
discharge shows he completed a total of 1 year, 8 months, and 26 days of
active military service.  It also shows that he was separated under the
provisions of Paragraph 14-12c, Army Regulation 635-200, by reason of
misconduct (abuse of illegal drugs), and that based on the authority and
reason for his separation, he was assigned a Separation Program Designator
(SPD) code of JKK and a reentry (RE) code of RE-3.


8.  There is no indication that the applicant applied to the Army Discharge
Review Board for an upgrade of his discharge within that board's 15-year
statute of limitations.

9.  Army Regulation 635-200 (Active Duty Enlisted Administrative
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, a pattern of misconduct, commission of a serious
offense, and convictions by civil authorities.

10.  Paragraph 14-12c(2) of the enlisted separations regulation provides
guidance on separation processing based on the abuse of illegal drugs,
which constitutes serious misconduct.   It states, in pertinent part, that
all Soldiers against whom charges will not be referred to a court-martial
authorized to impose a punitive discharge or against whom separation will
not be initiated under the provisions of chapter 9 or Section II, chapter
14 of this regulation, will be processed for separation under this
provision of the regulation.  "Processed for separation" means that
separation action will be initiated and processed through the chain of
command to the separation authority for appropriate action.  A discharge
under other than honorable conditions (UOTHC) is normally appropriate for a
Soldier discharged under this chapter.  However, the separation authority
may direct a GD if such is merited by the Soldier's overall record.  A
characterization of service as honorable is not authorized unless the
Soldier's record is otherwise so meritorious that any other
characterization clearly would be inappropriate.

11.  Army Regulation 635-5-1 (SPD Codes) provides 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.  It states, in
pertinent part, that the SPD code of JKK is the appropriate code to assign
to Soldiers separated under the provisions of Chapter 14, Army Regulation
635-200, by reason of
Misconduct (drug abuse).  The SPD/RE Code Cross Reference Table in effect
at the time of the applicant's discharge indicated RE-3 was the proper code
to assign members separated with SPD code JKK; however, the current version
of the regulation stipulates that RE-4 is the proper code to assign to
members separated with an SPD code of JKK by reason of misconduct (drug
abuse).

12.  Army Regulation 601-210 covers eligibility criteria, policies, and
procedures for enlistment and processing into the Regular Army (RA) and the
United States Army Reserve (USAR).  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
with a waivable disqualification and RE-4 applies to persons who have a
nonwaivable disqualification.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to upgrade his discharge and to, in effect,
change his RE code to one that will allow for his reentry into military
service was carefully considered.  However, there is an insufficient
evidentiary basis to support granting the requested relief.

2.  The evidence of record confirms the applicant's separation processing
was accomplished in accordance with the applicable regulation.  All
requirements of law and regulation were met and the rights of the applicant
were fully protected throughout the separation process.  Further, the
applicant's use of illegal drugs clearly diminished the overall quality of
his service below that meriting a fully honorable discharge.

3.  Further, although the applicant was provided an RE-3 code in
conjunction with his separation for misconduct (drug abuse), under current
regulatory guidance, an RE-4 code is the proper code to assign members who
are separated for this reason.  The RE code assigned is more favorable than
required under current regulatory guidance and it remains valid at this
time.

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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_LMD___  __JCR___  __AMC__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




                                     __Ann M. Campbell___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070006522                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/10/02                              |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |1992/02/25                              |
|DISCHARGE AUTHORITY     |AR 635-200 C14                          |
|DISCHARGE REASON        |Misconduct (Drug Abuse)                 |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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