IN THE CASE OF:	  

		BOARD DATE:	       9 December 2009

		DOCKET NUMBER:  AR20080015191 


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 the narrative reason for separation on his 
DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed from “Misconduct-Abuse of Illegal Drugs” to only “Misconduct” or a more favorable reason that would allow him to reenter military service.

2.  The applicant states that he was young at the time and that he made a poor choice.  He also states that he was not provided proper drug counseling at the time.  However, he has lived with his mistake for over 20 years.  He has not gotten into trouble or had any problems with drugs since this mistake and he would like the opportunity to reenter the military.

3.  The applicant provides a self-authored statement, dated 28 August 2008; two character reference letters, dated 21 and 22 September 2006; a St. Louis, Missouri, transcript of conviction arrest information, dated 6 August 2008; and a DD Form 369 (Police Record Check), dated 6 August 2008, in support of his request.  

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 applicant's records show that he was born on 16 July 1968 and enlisted in the Regular Army at 17 years and 9 months of age for a period of 3 years on 22 April 1986.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Infantryman).  The highest rank/grade he attained during his military service was private first class (PFC)/E-3.  

3.  The applicant’s records further show he was awarded the Marksmanship Qualification Badge with Rifle Bar, the Sharpshooter Marksmanship Qualification Badge with Grenade Bar, and the Army Service Ribbon.  His records do not show any significant achievements or special acts during his military service.

4.  On 29 December 1987, the applicant participated in a unit urinalysis and tested positive for cocaine. 

5.  On 10 February 1988, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using cocaine at some unknown location, between 29 November 1987 and 29 December 1987.  His punishment consisted of reduction to private (PVT)/E-1, a forfeiture of $335.00 pay for 2 months, 45 days of restriction, and 45 days of extra duty.

6.  In March 1988, the applicant was command-referred to the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP).  The result of that referral is not known.

7.  On 14 December 1988, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12(c) of Army Regulation (AR) 635-200 (Personnel Separations), for misconduct, abuse of illegal drugs.

8.  On 14 December 1988, the applicant acknowledged receipt of the separation memorandum, consulted with legal counsel, and was advised of the basis for the contemplated separation action for misconduct, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by an administrative separation board, waived personal appearance before an administrative separation board, and elected not to submit a statement on his own behalf.  

9.  On 14 December 1988, the applicant’s immediate commander initiated separation action against him in accordance with paragraph 14-12(c) of AR    635-200 for misconduct, abuse of illegal drugs.  The immediate commander further recommended a waiver of the requirements for rehabilitation and remarked that the applicant was previously referred to Track II (outpatient) counseling in March 1988 and that further rehabilitation was not feasible because the applicant would have created serious disciplinary problems or a hazard to the mission and himself and would not have produced the quality Soldier desired by the Army. 

10.  On 19 December 1988, the separation authority approved the applicant’s discharge under the provisions of chapter 14 of AR 635-200 by reason of misconduct-abuse of illegal drugs, and directed the applicant be furnished a General Discharge Certificate.  Accordingly, the applicant was discharged on 6 January 1989.  The DD Form 214 he was issued confirms he was discharged with an under honorable conditions (general) character of service.  This form further confirms that he completed a total of 2 years, 8 months, and 16 days of creditable active military service.  Item 27 (Reentry Code) of this DD Form 214 shows the entry “3” and Item 28 (Narrative Reason for Separation) shows the entry “Misconduct-Abuse of Illegal Drugs.” 

11.  In his self-authored statement, dated 28 August 2008, the applicant provides a summary of his military background.  He goes on to describe how he was introduced to cocaine by another Soldier and how he tested positive on the urinalysis.  He was offered a deal to help local authorities find drug houses and ended up getting a general discharge.  After leaving the Army, he held a variety of jobs and excelled at each.  However, in view of the recent economic situation, he tried unsuccessfully to reenter the Regular Army and the Army National Guard. 

12.  The applicant provided two character reference statements as follows:

	a.  In his statement, dated 22 September 2006, the president of a contracting company comments on the applicant’s character and integrity and describes him as an asset to any organization in any capacity.


	b.  In his statement, dated 21 September 2006, the owner of a second contracting company comments on the applicant’s work ethics, problem solving ability, and willingness to assume leadership roles and also describes him as an asset to any organization.

13.  AR 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed 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 would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was 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.

14.  AR 635-200 states, in pertinent part, that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge.  AR 601-210 (Regular Army and Army Reserve Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  Table 3-1 included a list of the Regular Army Reenlistment Eligibility Codes (RE codes):

	a.  RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.

	b.  RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but the disqualification is waivable.  They are ineligible unless a waiver is granted. 

	c.  RE-4 applies to Soldiers separated from last period of service with a nonwaivable disqualification.







DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his narrative reason for separation should be changed from "Misconduct-Abuse of Illegal Drugs" to only "Misconduct" or a favorable reason that would allow him to reenter the Army.

2.  The applicant’s character reference letters, post service achievements and accomplishments, and desire to reenter the Army were considered.  However, the evidence of record shows the applicant was nearly 19 years of age at the time of his misconduct.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service without using illegal drugs.  Additionally, there is no evidence in the available records, and the applicant has not provided sufficient evidence showing that his drug abuse was the result of his age.

3.  The evidence of record confirms the applicant’s narrative reason for separation was assigned based on the fact that he was separated under the provisions of chapter 14, AR 635-200 due to misconduct, abuse of illegal drugs. Absent his misconduct in the form of drug abuse, there was no fundamental reason to process the applicant for discharge.  The underlying reason for his discharge was his misconduct – abuse of illegal drugs.  The only valid narrative reason for separation permitted under that paragraph is "Misconduct-Abuse of Illegal Drugs.” 

4.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  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 has failed to submit evidence that would satisfy this requirement.  Therefore, he is not entitled to relief.

5.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The appropriate RE code associated with the applicant’s discharge is RE-4.  Nevertheless, the applicant was assigned an RE-3.  The applicant is advised that if he desires to enlist, he should contact a local recruiter who can best advise him on his eligibility for returning to military service.  Those individuals can best advise a former service member as to the needs of the service at the time and may process enlistment waivers for the applicant’s RE code.


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.



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      _______ _   _______   ___
               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)                                         AR20080015191



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ABCMR Record of Proceedings (cont)                                         AR20080015191



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