IN THE CASE OF:	  

	BOARD DATE:	  22 May 2008

	DOCKET NUMBER:  AR20080004025


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that her general discharge under honorable conditions be upgraded to honorable and that her reentry (RE) code be changed. 

2.  The applicant states, in effect, that she was given a second chance to stay in the Army but when her weight exceeded the Army standard she was separated on the basis of her previous misconduct.  This was unfair, especially after the first sergeant had told her that everything would work out alright.  The applicant has returned to school and completed an associate degree and is completing the surgical technician program.  She is now a single mother with a very different thinking.  It has been over 5 years since she was on active duty and would like to be given another chance.

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 12 April 2000, the applicant enlisted in the Regular Army.  She completed her initial training and was awarded military occupational specialty (MOS) 92G (Food Service Specialist).

3.  On 15 July 2002, 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 pay grade E-1 and 45 days restriction and extra duty.  The applicant did not appeal the punishment.

4.  On 10 September 2002, the applicant’s commander notified her of his intention to separate her from active duty for commission of a serious offense.  The reason for this proposed action was her acceptance of NJP for use of cocaine.  The commander informed her that he was recommending her for a general discharge under honorable conditions.  

5.  On 16 September 2002, the applicant consulted with counsel concerning her rights.  She waived representation by counsel and elected to make a statement in her own behalf.  In her statement she acknowledged her mistake and asked that she not receive less than an honorable discharge because it would greatly affect her application for United States citizenship.  She also discussed her successful tour of duty in the Republic of Korea and how she has been a good Soldier except for this one incident.

6.  On 16 September 2002, the applicant’s commander recommended separation from the service under the provisions of Army Regulation 635-200, Chapter 14, for commission of a serious offense [drug abuse].   He stated that if the applicant were permitted to remain on active duty her poor performance would only continue, causing her to be a disruptive influence in the unit.  He recommended that she receive a general discharge under honorable conditions.  

7.  On 25 September 2002, the appropriate authority approved the recommendation for discharge and directed that the applicant be issued a General Under Honorable Conditions Discharge Certificate.

8.  Accordingly, on 3 October 2002, the applicant was discharged under honorable conditions.  She had completed 2 years, 5 months and 22 days of creditable active service.  She was given a Separation Program Designator (SPD) Code of JKK [misconduct - drug abuse] and an RE Code of 4.  

9.  On 17 October 2007, the Army Discharge Review Board denied the applicant’s request for an upgrade of her discharge.

10.  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.

11.  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.

12.  Under the UCMJ, the maximum punishment allowed for violation of Article 112a for use of cocaine is a punitive discharge and confinement for 5 years.

13.  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 4 applies to persons separated from their last period of service with a non-waivable disqualification.  That regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect.

14.  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 - drug abuse.  Additionally, 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 accepted NJP for wrongful use of cocaine.  Clearly, she committed 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 her rights.

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

4.  Neither the reported post-service academic accomplishments, nor the alleged conversation with the first sergeant about weight control mitigates her act of indiscipline during her military service.

5.  The RE Code 4, establishing her ineligibility for enlistment/reenlistment, was correctly entered on her separation document in accordance with governing regulations.  There is no evidence of error or injustice.

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

7.  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.

8.  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 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
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20070016793



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ABCMR Record of Proceedings (cont)                                         AR20080004025



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