RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 March 2008
	DOCKET NUMBER:  AR20070014080 


	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

Ms. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. Mark D. Manning

Chairperson

Mr. Jeffrey C. Redmann

Member

Mr. Rowland C. Heflin

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 eligibility (RE) Code be change from “RE 3” to “RE 1” and that his Separation Code be changed from “JKK” to “JND.”

2.  The applicant states, in effect, that in his previous Record of Proceedings, Docket Number AR20060016796, he inadvertently failed to mark an “X” in item 5 (Board Action Requested), of his DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), to show the entry “change discharge to entry level separation,” and “change reason for discharge.”  It is his belief that the original discharge was a deliberate and intentional act of wrongful discharge and he has presented the documents to prove his position.  

3.  The applicant provides an additional letter of explanation.  He states that the battalion commander and the TAG (The Adjutant General) violated provisions of the regulation.  He provides an extract of Army Regulation 135-178, chapter 2 and chapter 12.  

4.  The applicant provides a copy of his ADRB proceedings and several other documents in support of his request.  

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the New York Army National (NYARNG) on 24 July 2000, in the pay grade of E-5, with prior Regular Army service.  

2.  The applicant was ordered to active duty on 1 October 2004 for ADSW (Active Duty for Special Work).  

3.  On 26 November 2004, the applicant was ordered to active duty in the Active Guard Reserve (AGR) Program for a period of 3 years.

4.  The applicant was released from ADSW on 31 March 2005.   

5.  On 28 October 2005, the applicant tested positive for cocaine.

6.  The commander recommended that the applicant be separated from the service under the provisions of Army Regulation 135-178, chapter 12, prior to the expiration of his term of service (ETS).  The commander recommended that his service be characterized as under other than honorable conditions (UOTHC).  He based his reasons on the applicant having tested positive for the illegal use of cocaine in a unit urinalysis on 28 October 2005.

7.  The applicant was advised of his rights and appointed military counsel.

8.  On 7 January 2006, the Staff Judge Advocate (SJA) reviewed the administrative separation board action case regarding the applicant.  The SJA determined that based on the applicant's length of service and the serious misconduct, an administrative board must be convened.

9.  On 22 April 2006, the applicant was properly notified of the board date.

10.  On 6 May 2006, the applicant appeared before an administrative separation board.  The board found that a preponderance of the evidence proved that he did engage in wrongful abuse of illegal drugs, cocaine.  The board also found that he was not qualified for further service in the AGR Program.  The board further recommended that he be separated immediately from the NYARNG, but the separation be suspended for 12 months.  If the suspension was later vacated by the separation authority, his service would be characterized as general, under honorable conditions.

11.  On 19 May 2006, the SJA reviewed the administrative separation action against the applicant and found the proceedings to be legally sufficient.  The SJA stated that the controlling regulations were followed and the applicant was provided due process under, the provisions of Army Regulation 135-178.  The SJA recommended that the boards finding and recommendation be approved without exception or substitution.
The SJA stated that the applicant raised the defense of innocent ingestion, alleging a drink he had consumed had been spiked with cocaine.  The board was not persuaded by this defense and found that the applicant wrongfully ingested cocaine.  The SJA concluded that the TAG was not bound by the board’s recommendation regarding suspension of the applicant’s separation from the NYARNG.  The SJA indicated that the TAG had several options and he outlined these and identified them as options “a through I” in his memorandum.  Based on the board’s recommendation, the SJA recommended that the TAG approve the findings and recommendations of the administrative separation board without exception or substitution.  

12.  On 19 May 2006, the applicant’s legal counsel prepared a memorandum, Subject:  Supplemental Information.  Counsel stated that the board’s findings and recommendations were against the weight of the evidence found and urged that the applicant not be separated from either the AGR or the ARNG.  Counsel elaborated on evidence previously discussed in the administrative separation board proceedings.  Counsel stated the burden of the recorder was to demonstrate by a preponderance of the evidence that the applicant knowingly used an illegal drug.  Counsel felt that the recorder fell short of this burden, and the applicant should not be separated from the AGR or the NYARNG.  Counsel concluded that this incident represented an unfortunate and frustrating episode in the applicant’s life which should not result in an end to his service.

13.  On 29 September 2006, the TAG informed the applicant in writing that he would be involuntarily separated from the AGR Program and the NYARNG for use of illegal substances within 30 days.  The characterization of his service would be general which would preclude him from entitlements of separation pay.  He was also informed that he was ineligible for future service in the AGR and Technicians Programs.

14.  On 29 October 2006, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c(2), for misconduct-drug abuse.  He was issued an UOTHC discharge.  He had completed 5 years, 11 months, and 14 days of creditable service and 5 years, 2 months, and 15 days prior inactive service.

15.  Item 27 (Reenlistment Code) of the applicant’s DD Form 214 shows the entry “3,” item 26 (Separation Code) shows the entry “JKK,” and the narrative reason for separation entered on his discharge certificate was "misconduct, drug abuse."

16.  On 30 October 2006, the applicant was discharged from the NYARNG.

17.  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, and convictions by civil authorities.  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.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

18.  Paragraph 14-12c(2) provides for the separation of Soldiers for commission of a serious offense such as the abuse of illegal drugs
19.  On 7 December 2006, the applicant applied to the ADRB for an upgrade of his UOTHC discharge.  The ADRB determined that the characterization of service was too harsh and inequitable and voted to change the characterization to general, under honorable conditions, but voted not to change the reason for discharge.  A new separation document was prepared and forwarded to the applicant without his signature.

20.  Army Regulation 135-178 established the policies, standard, and procedures governing the administrative separation of enlisted Soldiers from the Reserve Components.  Chapter 12 pertains to separation for misconduct.  Specific categories include minor disciplinary infractions, patterns of misconduct, commission of a serious offense, and abuse of illegal drugs.  Paragraph 12d states, in pertinent part, that abuse of illegal drugs is serious misconduct and that discharge action will normally be based on commission of a serious offense.  However, relevant facts may mitigate the nature of the offense.  It also states that a single drug abuse offense may be combined with one or more disciplinary infractions, or incidents of other misconduct, for discharge.  

21.  Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned reentry 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 US Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  This chapter includes a list of Armed Forces reentry codes, including RA RE codes.

22.  RE 3 applies to persons not fully qualified for continued Army service and personnel who are discharged, but the disqualification is waivable.

23.  RE-4 applies to persons not qualified for continued service by virtue of being separated from the service with non-waivable disqualification such as misconduct.

24.  RE-1 applies to persons completing their service and who are considered qualified to reenter the Army.

25.  Army Regulation 635-5-1, in effect at that time, prescribed 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 shows that the separation program designator (SPD) “JKK,” as shown on the applicant’s DD Form 214, is appropriate for discharge when the narrative reason for discharge is “misconduct, commission of a serious offense, abuse of illegal drugs” and the authority for discharge under this SPD is “Army Regulation
635-200, chapter 14, paragraph 14-12c(2).”  The SPD code of “JND” is appropriate for involuntary release from active duty when the narrative reason for separation is “Miscellaneous/General Reasons” and the authority for discharge under this SPD is “Army Regulation 635-200, paragraph 5-14.”

26.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers separated for cause.  It also shows the SPD code with a corresponding RE code and states that more than one RE code could apply.  The Soldier’s file and other pertinent documents must be reviewed in order to make a final determination.  The SPD code of “JKK” has a corresponding RE code of “4” that is determined by appropriate authorities directing the change.  The SPD code of “JND” has a corresponding RE code of “3” which is determined by the HQDA (Headquarters, Department of the Army) directive authorizing the separation program, or specific separation will provided the RE Code.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant tested positive for cocaine.  He was recommended for separation and advised of his rights.  He consulted with counsel, was advised of the impact of the discharge action, and he requested consideration of his case by an administrative separation board.  

2.  The applicant appeared before the board with counsel.  The board found that a preponderance of the evidence proved that he did engage in wrongful use of illegal drugs, cocaine.  The board also found that he was not qualified for further service in the AGR Program.  The board recommended his separation from the NYARNG, with suspension for 12 months.  Despite the recommendation for a 12 month suspension of his separation, the TAG ordered his discharge within 30 days of his notification.  His case was reviewed by the SJA who found the proceeding to be legally sufficient.

3.  The applicant was discharged from the AGR Program under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for misconduct-drug abuse.  He was issued an UOTHC discharge.

4.  The applicant was issued a Separation Code of “JKK” that has a corresponding RE Code of “4.”  However, his DD Form 214 shows an RE Code of “3.”

5.  The SPD “JKK” that was applied to the applicant’s DD Form 214, corresponds to the narrative reason of misconduct-drug abuse, shown on the applicant’s DD Form 214.

6.  The applicant's separation code of “JKK” is consistent with the basis for his separation; however, the RE Code of “RE 3” which was applied to his DD Form 214 is not consistent with the separation code.  

7.  The evidence shows that the applicant applied to the ADRB for an upgrade of his discharge.  The ADRB determined that the characterization of his service was inequitable.  The ADRB voted to change the characterization to general, under honorable conditions, but voted not to change the reason for his discharge.

8.  The applicant is now requesting, in effect, after his discharge upgrade, that his RE Code be change from “RE 3” to “RE 1” and that his Separation Code be change from “JKK” to “JND.”

9.  It is noted that the applicant was issued the wrong RE Code of “3”; however, his RE Code of “3” should not be changed and should remain as shown in item 27 of his originally issued DD Form 214.  It is the policy of this Board not to disadvantage an applicant by making a change that would leave an applicant worse off for having applied for a correction of the record.

10.  The applicant has also failed to show, through the evidence submitted with his application or the evidence of record, that the SPD Code of “JKK” issued to him was incorrect.

11.  The applicant contends that he inadvertently made mistakes on his DD Form 293 and put an “X” in the wrong block of item 5.  However, in light of the discussion above, this contention has no merit. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___MDM_  _JCH ___  __RCH__  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.




_____Mark D. Manning______
          CHAIRPERSON




INDEX

CASE ID
AR20070014080
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20080313
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
20061029
DISCHARGE AUTHORITY
AR 635-200, chap 14-12c(2)
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
110
2.

3.

4.

5.

6.