RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  14 November 2007
	DOCKET NUMBER:  AR20070009334 


	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

Mrs. Nancy L. Amos

Analyst


The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Ms. Carmen Duncan

Member

Mr. Qawiy A. Sabree

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 discharge be upgraded, that his narrative reason for separation be changed, and that his reentry (RE) code be changed.

2.  The applicant states he wants to get a second chance in the Navy.  He was not discharged for drugs.  He was discharged for larceny.  He broke into the car of the person who broke into his car.  It was a dumb mistake, but he does not think it was fair to get discharged for that.  He did come up positive on a urinalysis test, but it was a year and a half before the larceny situation.  He had made his rank back after the urinalysis test and had already gone to the E-5 promotion board.  He takes full responsibility for his actions, but he needs his RE code changed so he can join the Navy or come back into the Army.  

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  After having had prior service, the applicant enlisted in the Regular Army on 20 February 1997.  

2.  On 3 April 1998, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana between on or between 28 December 1997 and 28 January 1998 and for wrongfully using cocaine on or between 25 January 1998 and 28 January 1998.  His punishment was a reduction to Private, E-2, a forfeiture of $523.00 pay per month for two months (suspended); extra duty for 45 days; and restriction for 45 days.

3.  On 3 June 1998, a bar to reenlistment on the applicant was approved.  The DA Form 4126-R (Bar to Reenlistment Certificate) listed as factual and relevant indicators of the applicant’s untrainability or unsuitability his wrongful use of marijuana and cocaine; three counselings for failing to report for duty; one counseling for disobeying a lawful order; two counselings for failing to follow instructions; and one counseling for spouse abuse.

4.  On 21 December 1999, the applicant accepted NJP under Article 15, UCMJ for larceny.  His punishment was a reduction to Private First Class, E-3 (suspended); a forfeiture of $297.00 pay per month for one month; and extra duty for 45 days.  

5.  On 17 May 2000, the applicant received a mental status evaluation.  He was found to have the mental capacity to understand and participate in proceedings and to be mentally responsible.  He was psychiatrically cleared for any administrative action deemed appropriate. 

6.  On 21 June 2000, the applicant completed a separation physical and was found qualified for separation.

7.  On 3 September 2000, the applicant’s commander initiated separation proceedings under Army Regulation 635-200, paragraph 14-12c for serious misconduct.  He cited the applicant’s wrongful use of marijuana and cocaine and his offense of larceny as the reasons for his proposed action.

8.  On or about 3 September 2000, the applicant was advised by consulting counsel of the basis for the contemplated action to separate him for serious misconduct under Army Regulation 635-200, paragraph 14-12c.  He waived consideration of his case by an administrative separation board contingent upon his receiving a characterization of service no less favorable than general under honorable conditions.  He declined to submit a statement in his own behalf.

9.  On 3 September 2000, the applicant’s commander formally recommended him for separation under the provisions of Army Regulation 635-200, paragraph 14-12c.

10.  The appropriate commander approved the recommendation to separate the applicant under the provisions of Army Regulation 635-200, paragraph 14-12c and directed he be issued a General Discharge Certificate.

11.  On 15 November 2000, the applicant was discharged with a general discharge under honorable conditions.  Item 25 (Separation Authority) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 15 November 2000 shows he was separated under the provisions of Army Regulation 635-200, paragraph 14-12c(2).  Item 26 (Separation Code) shows he was given a separation program designator (SPD) code of JKK.  Item 27 (Reentry Code) shows he was given an RE code of 3.  Item 28 (Narrative Reason for Separation) shows the reason for separation as “MISCONDUCT.”

12.  On 1 December 2004, the Army Discharge Review Board denied the applicant’s request for a discharge upgrade.

13.  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.  Paragraph 14-12c provides for the separation of a Soldier for the commission of a serious military or civil offense.  Paragraph 14-12c(2) states that abuse of illegal drugs is serious misconduct.  When a Soldier is separated for misconduct, a discharge under conditions other than honorable is normally considered appropriate.

14.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

15.  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 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.

16.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  

17.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD JKK is used for an involuntary discharge when the reason for discharge is Army Regulation 635-200, paragraph 14-12c(2).  The narrative reason will be “Misconduct.”  SPD JKQ is used for an involuntary discharge when the reason for discharge is Army Regulation 635-200, paragraph 14-12c.  The narrative reason will be “Misconduct.”

18.  The SPD/RE Code Cross-Reference Table states that when the SPD is either JKK or JKQ then RE code 3 will be given.

DISCUSSION AND CONCLUSIONS:

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 applicant’s contention nevertheless has some validity.  The evidence of record shows that he was in fact recommended for discharge for both drug use and larceny.  The governing regulation does not put a time limit on how long after the drug offense is committed that separation proceedings must begin.  However, all of his separation documents state that he was being separated under the provisions of Army Regulation paragraph 14-12c (the general provisions for separation for commission of a serious offense) and not paragraph 14-12c(2) (the specific provisions for separation for a drug offense).  

3.  Therefore, item 25 of the applicant’s DD Form 214 for the period ending        15 November 2000 should be corrected to show the authority for separation as Army Regulation 635-200 paragraph 14-12c, and item 26 should be corrected to show the SPD as JKQ.  The narrative reason for separation, “Misconduct,” is still valid.  RE code 3 still remains valid with the new authority for separation and the new SPD code.

4.  Even so, the larceny offense alone was serious misconduct.  Considering his prior misconduct for the drug offenses and the incidents noted on his bar to reenlistment certificate, the applicant could have been given a discharge under other than honorable conditions.  It appears his command already considered clemency by giving him a general discharge under honorable conditions.  An upgrade of his discharge to fully honorable is not warranted based upon the facts of the case.

5.  The applicant’s enlistment disqualification would normally be waivable at the recruiting authority’s discretion for enlistment in the Army; however, it is understood that other branches of Service might have different criteria for enlistment.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__lds___  __cd____  __qas___  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.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending item 25 of his DD Form 214 for the period ending 15 November 2000 to show the authority for separation as Army Regulation 635-200 paragraph      14-12c and amending item 26 to show the SPD as JKQ.

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 upgrading his discharge, changing his narrative reason for separation, or changing his RE code.  




__Linda D. Simmons____
          CHAIRPERSON




INDEX

CASE ID
AR20070009334
SUFFIX

RECON

DATE BOARDED
20071114
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
20001115
DISCHARGE AUTHORITY
AR 635-200, ch 14
DISCHARGE REASON
A60.00
BOARD DECISION
GRANT
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
110.00
2.
110.02
3.

4.

5.

6.