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ARMY | BCMR | CY2008 | 20080010638
Original file (20080010638.txt) Auto-classification: Denied

	IN THE CASE OF:	  

	BOARD DATE:	  21 October 2008

	DOCKET NUMBER:  AR20080010638


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 correction of his Certificate of Release or Discharge from Active Duty (DD Form 214) to change the separation program designator (SPD) code.

2.  The applicant states that he was separated from the military for using marijuana and not for being absent without leave (AWOL).  He contends that the SPD code on his DD Form 214 indicates that he was discharged for being AWOL.

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 10 March 1998, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 92G (Food Service Specialist).

3.  On 19 February 2002, the applicant was assigned for duty as a cook to Fort Richardson, Alaska.

4.  On 24 January 2005, 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 pay grade E-4, forfeiture of $946.00 pay per month for 2 months, and 45 days restriction and extra duty.

5.  On 15 March 2005, the Commander, United States Army Garrison, Fort Richardson, Alaska, recommended that the applicant be separated from the Army under the provisions of Army Regulation 635-200, paragraph 14-12c(2), for the wrongful use of marijuana, a commission of a serious offense.

6.  On 3 May 2005, the appropriate authority approved the recommendation and directed that the applicant be separated from the Army due to the commission of a serious offense and that he be issued a General Discharge Certificate.

7.  On 23 May 2005, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c(1), for misconduct (AWOL).  He was given a separation program designator (SPD) code of JKD and an RE code of 3. His character of service was shown as honorable.

8.  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 JKD was the appropriate code for Soldiers separating under the provisions of AR 635-200, paragraph 14-12c(1) for misconduct due to AWOL.  The SPD code of JKK was the appropriate code for Soldiers separating under the provisions of AR 635-200, paragraph 14-12c(2) for misconduct due to drug abuse.  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 with an SPD of JKD, and an RE code 4 for Soldiers with an SPD code of JKK.  An RE code 4 is applied to an individual separated from the service with a nonwaivable disqualification rendering the applicant ineligible for enlistment.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows that the applicant was to be discharged from the Army due to misconduct by using marijuana, and to receive a characterization of service as under honorable conditions.

2.  His DD Form 214 was incorrectly prepared showing his characterization of service as honorable; the separation authority as Army Regulation 635-200, paragraph 14-12c(1), an SPD of JKD, an RE code of 3, and a narrative reason for separation as misconduct.

3.  The correct entries should have shown that he was discharged with an under honorable conditions characterization of service; a separation authority as Army Regulation 635-200, paragraph 14-12c(2); an SPD of JKK; an RE code of 4; and a narrative reason of misconduct (drug abuse).  An RE code 4 is applied to an individual separated from the service with a nonwaivable disqualification rendering the applicant ineligible for enlistment.

4.  Changing the applicant's SPD code from JKD to JKK would also necessitate changing the related entries discussed above.

5.  Correcting the applicant's DD Form 214 would clearly make him worse than he is at present.  It is the policy of the Board to not make an applicant worse off as a result of the correction of his records.  Therefore, his request should be denied.  If the applicant wishes to have the above corrections made to his DD Form 214, he may resubmit under reconsideration criteria to the ABCMR.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ___X____  ___X___  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does demonstrate the existence of a probable error, however, there is no apparent 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)                                         AR20080010638



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