RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 May 2008
	DOCKET NUMBER:  AR20080001811 


	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.


 

Director

 

Analyst
      The following members, a quorum, were present:


  

Chairperson

  

Member

 

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.   He further requests that his reentry (RE) code and narrative reason for separation be changed to something more favorable.

2.  The applicant states that it has been 16 years since his discharge.  He has not had any felony or misdemeanor convictions and is currently very active in youth programs in his community.  He has not used any drugs since his discharge.  In 1996 he completed a basic law enforcement school and is currently trying to secure employment overseas with a contractor.

3.  The applicant provides no supporting documentation.

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 13 July 1989, the applicant enlisted in the Regular Army for 6 years.  He completed his initial training and was awarded military occupational specialty 31K (Combat Signaler)

3.  On 21 December 1989, the applicant was assigned for duty as a combat signaler at Fort Bragg, North Carolina.

4.  On 16 May 1991, the applicant rendered a urine sample during a unit directed urinalysis.  The sample tested positive for cocaine.

5.  On 13 June 1991, the applicant was counseled for drinking alcoholic beverages while on duty.

6.  On 20 June 1991, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for wrongful use of cocaine.  The punishment included reduction to grade E-1 and 45 days extra duty.

7.  On 1 July 1991, the applicant’s commander recommended separation from the service under the provisions of Army Regulation 635-200, Chapter 14, for the commission of a serious offense.   At some time between 6 and 16 May 1991, the applicant had wrongfully used cocaine.

8.  On 2 July 1991, the applicant consulted with counsel concerning his rights.  He indicated that he would make a statement in his own behalf.  There is no statement in the available records.

9.  The applicant’s medical records are not available for review.  The separation packet indicates that he underwent both a medical examination and a mental status evaluation.  The documentation are not available.

10.  On 24 July 1991, the appropriate authority approved the recommendation for discharge and directed that the applicant be issued a general discharge under honorable conditions.

11.  Accordingly, on 8 August 1991, the applicant was discharged with a general discharge under honorable conditions.  He was given a Separation Program Designator (SPD) Code of JKK and an RE Code of 3.  The narrative reason for separation was Misconduct-Abuse of Illegal drugs.  He had completed 2 years and 26 days of creditable active service.  

12.  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.

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.  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.



14.  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.

15.  Under the Manual for Courts-Martial, the maximum punishment allowed for violation of Article 112a for wrongful use of cocaine is a punitive discharge and confinement for 5 years.

16.  Army Regulation 601-210, in effect at the time, prescribed eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the Army Reserve.  Chapter 3 of that regulation prescribed basic eligibility for prior service applicants for enlistment and includes a list of armed forces RE Codes including RA RE codes.  RE-3 applied to persons separated from their last period of service with a waivable disqualification, and RE-4 to persons with a non-waivable disqualification.  That regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect.

17.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities and reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. The SPD code of JKK 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, for Misconduct–Abuse of Illegal Drugs.  It required an RE Code 3 at the time.  Currently, Table 2-3 (SPD/RE Code Cross Reference Table), Army Regulation 635-5 (Separation Documents) establishes RE Code 4 as the proper RE code to assign to Soldiers for this reason.

DISCUSSION AND CONCLUSIONS:

1.  The record shows that the applicant had tested positive for use of cocaine which is clearly a serious offense.

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.  The RE Code 3, establishing his ineligibility for enlistment/reenlistment without a waiver, and the narrative reason for separation were correctly entered on his separation document in accordance with governing regulations in effect at the time.  There is no evidence of error or injustice.

5.  There is no apparent basis for removal or waiver of the applicant’s disqualification that established the basis for the RE Code 3, or for changing the narrative reason for his separation. 

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.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ___X____  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.




      __________X____________
                CHAIRPERSON
ABCMR Record of Proceedings (cont)                                         AR20080001811



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508