IN THE CASE OF:	  

		BOARD DATE:	        02 OCTOBER 2008

		DOCKET NUMBER:  AR20080012121 


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 that his narrative reason for separation and his Separation Program Designator (SPD) code be changed. 

2.  The applicant states, in effect, that although his discharge was upgraded, the past 8 years have been very stressful and trying for him and his family.  He contends that since his mother was terminally ill with cancer and since his was a first time offense, that he would be receiving a general discharge (GD), under honorable conditions with a chance for upgrade at a later date.  He was never briefed that the reason for his discharge was misconduct.  If that was the fact, then he would have finished his enlistment.  His reason for failing the urine test was unknowingly eating brownies with marijuana in them.  He feels he should not be held accountable for the rest of his life because he did not know about the marijuana. 

3.  The applicant provides a copy of his DD Form 214 in support of his application.

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.  The evidence of record shows the applicant served in the Regular Army from 30 July 1996 through 14 November 1998.  He was discharged under the provisions of Army Regulation 635-200, chapter 14-12c(2), by reason of commission of a serious offense – abuse of illegal drugs.  He was assigned an SPD Code of "JKK."

3.  A review of the applicant's discharge documents shows that the unit commander, in his notification to the applicant of discharge proceedings, stated "I am initiating action to separate you for a commission of a serious offense.  The reasons for my proposed action are:  You received an Article 15 for testing positive at your unit urinalysis for marijuana.  You have been warned that misconduct such as this will not be tolerated, but you have failed to take heed to these warnings."

4.  The applicant acknowledged notification of his discharge action and signed the following statement with his signature:  "I have been advised by my consulting counsel of the basis for the contemplated action to separate me for a commission of a serious offense under Army Regulation, chapter 14-12c, and its effects."

5.  On 14 April 2000, the Army Discharge Review Board considered the applicant's case and upgraded his characterization of service to honorable.  The ADRB unanimously denied a change in his narrative reason for discharge.  

6.  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.  A separation code of "JKK" applies to persons who are separated under the provisions of chapter 14-12c(2), Army Regulation 635-200.    

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that had he known he was being discharged for misconduct, he would have continued on active duty.  The evidence of record shows that he was involuntarily processed for discharge by reason of 
commission of a serious offense – abuse of illegal drugs.  Although he was a first-time offender, his command determined that his offense compelled discharge action.  By violating the Army's policy not to possess or use illegal drugs, the applicant compromised the trust and confidence placed in a Soldier.  The applicant, as a Soldier, had the duty to support and abide by the Army's drug policies.  By abusing illegal drugs, the applicant knowingly risked a military career.

2.  The applicant further contends that he was not advised of the narrative reason for his discharge.  A review of his discharge documentation shows that he was clearly advised of the nature of his misconduct and the reason for discharge.  He acknowledged receipt of the notification in writing.

3.  The applicant also contends that he unknowingly ate brownies laced with marijuana.  However, the applicant accepted an Article 15 for wrongful use of marijuana and did not appeal the action.  Further, if the applicant used this same argument at the time of his Article 15 action, then his command did not find it sufficiently mitigating.

4.  Given the above, the narrative reason for discharge was fully supported in the official record.  Although the ADRB upgraded the applicant's characterization of service to honorable, it unanimously denied a change to his narrative reason for separation.  The applicant's wrongful use of marijuana formed the basis for his discharge action.

5.  The SPD code is based on an individual's reason for discharge and cannot be changed unless the narrative reason for discharge is changed.  In this case, the applicant's SPD code was appropriately assigned in accordance with the regulatory guidance above.

6.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.



      ___        XXX                ___
                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)                                         AR20080012121



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ABCMR Record of Proceedings (cont)                                         AR20080012121



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