RECORD OF PROCEEDINGS


	IN THE CASE OF:	 


	BOARD DATE:	  20 December 2007
	DOCKET NUMBER:  AR20070010599 


	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. Michael L. Engle

Analyst

The following members, a quorum, were present:


Mr. Richard T. Dunbar

Chairperson

Ms. Jeanette R. McCants

Member

Mr. Jerome L. Pionk

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 discharge under honorable conditions be upgraded to honorable. 

2.  The applicant states, in effect, that he is still being punished for an incident that happened more than 19 years ago.  Since that time, he has matured both mentally and physically and has come to realize the grave mistake in judgment that he had made.  He has been an active member of his church helping others to stay on the right path by giving testimony of how his making one wrong decision changed his life and career.  He further states that he wants to complete his military service by joining the Army Reserve or the Army National Guard.  However, before he can do this, his discharge must be upgraded or his reentry code changed.

3.  The applicant provides copies of his Certificate of Release or Discharge from Active Duty (DD Form 214) and three letters of support from his employers.

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.  On 29 September 1977, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 13E1O (Cannon Fire Direction Specialist).  He reenlisted on 19 June 1981; 
22 April 1985; and on 19 February 1988.  

3.  On 8 March 1985, the applicant was promoted to the rank of staff sergeant, pay grade E6.


4.  On 15 March 1989, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for wrongful use of marijuana.   The punishment included reduction to sergeant, pay grade E5; a forfeiture of $ 659.00 pay per month for 2 months (suspended), and 
45 days restriction and extra duty (suspended).  Suspended punishment was vacated on 17 August 1989 for additional misconduct.

5.  On 17 August 1989, the applicant’s commander advised him that he was initiating action to separate him for misconduct, specifically the wrongful use of illegal drugs.  The commander also advised the applicant that he was going to recommend that he receive a discharge under other than honorable conditions.

6.  On 24 August 1989, the applicant accepted NJP for wrongful use of marijuana and cocaine. The punishment included reduction to specialist, pay grade E4; and 45 days restriction.

7.  On 24 August 1989, the applicant consulted with counsel concerning his rights and submitted a request for a conditional waiver of his case by an administrative separation board, contingent upon his receiving a characterization of service or description of separation no less favorable than under honorable conditions.  

8.  On 28 August 1989, the applicant’s commander recommended separation from the service under the provisions of Army Regulation 635-200, Chapter 14, for misconduct due to the commission of a serious offense.   

9.  On an undated memorandum, the appropriate authority approved the recommendation for discharge and the applicant’s request for conditional waiver, and directed that the applicant be issued a discharge under honorable conditions.

10.  Accordingly, on 12 October 1989, the applicant was discharged under honorable conditions.  He had completed 12 years and 15 days of creditable active service.  He was given a Separation Program Designator (SPD) code of JKQ and an RE code 3.  His character of service was under honorable conditions.  

11.  Army Regulation 601-210 prescribes eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment and includes a list of armed forces RE codes including RA RE codes.  RE 3 applies to persons separated from their last period of service with a waivable disqualification.  That regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect.

12.  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. The SPD code of JKQ was the appropriate code for the applicant based upon the guidance provided in Army Regulation 635-5-1 for Soldiers separating under the provisions of AR 635-200, Chapter 14, misconduct. Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), Army Regulation 635-5 (Separation Documents) establishes RE code 3 as the proper RE code to assign to Soldiers separated for this reason.

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

14.  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, convictions by civil authorities, 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.

15.  Army Regulation 635-200 further provides, in pertinent part, that the misconduct is considered a commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Uniform Code of Military Justice.

16.  Under the UCMJ, the maximum punishment allowed for wrongful use of marijuana is a punitive discharge and confinement for 2 years.

17.  The three letters of support, provided by the applicant, state that he has been a dependable worker, who has brought new ideas and implemented improvements to the manufacturing process.  The writers of all three letters further state, in effect, that they highly recommend the applicant and that he would be an asset to any organization. 



DISCUSSION AND CONCLUSIONS:

1.  The evidence of record clearly shows that the applicant committed two serious offenses within a 5 month period, either of which warranted a discharge under other than honorable conditions.   

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.

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

4.  There is no apparent basis for removal or waiver of the applicant’s disqualification that established the basis for the RE Code 3.  While the applicant’s desire to continue in the service to his country is commendable, there are no provisions authorizing the change of an RE code for this purpose.

5.  The applicant’s good post-service conduct is noted.  However, it does not sufficiently mitigate his repeated acts of indiscipline during his military service.

6.  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

__RTD __  __JLP ___  __JRM__  DENY APPLICATION







BOARD DETERMINATION/RECOMMENDATION:

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.






__    Richard T. Dunbar __
          CHAIRPERSON




INDEX

CASE ID
AR20070010599
SUFFIX

RECON
 
DATE BOARDED
20071220 
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19891012
DISCHARGE AUTHORITY
AR 635-200. . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.6000
2.

3.

4.

5.

6.