IN THE CASE OF:	

		BOARD DATE:	 23 July 2009   

		DOCKET NUMBER:  AR20080016306 


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 his character of service, separation authority, separation code, reentry (RE) code, and the narrative reason for his separation on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed.

2.  The applicant states, in effect, he was not allowed to speak with trial defense services until the last minute, they did not explain his rights to him, and they told him that he could not speak with his chain of command.  He also states, in effect, that he wanted to go for rehabilitation.

3.  The applicant provides a copy of a memorandum from his trial defense counsel, a copy of a memorandum from his commander, and a copy of his Report of Medical Examination 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 applicant’s record shows that he enlisted in the Regular Army (RA) on
7 July 1998.  

3.  On 19 February 2002, the applicant was punished under Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana between on or about 5 December 2001 and 5 January 2002.  His punishment included reduction to private first class (PFC)/E-3; forfeiture of $691.00 per month for two months, suspended, to be automatically remitted if not vacated before 17 August 2002; and extra duty and restriction for 45 days.

4.  On an unspecified date, the suspension of forfeiture of $691.00 per month for two months imposed on 19 February 2002 was vacated and ordered to be duly executed.  The reason for the vacation of suspension was the applicant's wrongful use of marijuana between on or about 19 January 2002 and
19 February 2002.

5.  On 22 May 2002, the applicant was punished under Article 15 of the UCMJ for the wrongfully using marijuana between 19 January 2002 and 19 February 2002. His punishment included reduction to private (PV1)/E-1; forfeiture of $521.00 per month for two months, suspended, to be automatically remitted if not vacated before 20 August 2002; and extra duty and restriction for 45 days. 

6.  On 3 April 2002, a mental status evaluation cleared the applicant for any administrative action deemed appropriate by the command.

7.  The applicant submitted a copy of his DD Form 2808 (Report of Medical Examination), dated 16 May 2002, which was part of his separation physical and is included in his separation packet.

8.  The applicant submitted a copy of a memorandum, dated 16 May 2002, from his trial defense counsel regarding the applicant's desire to attend drug and alcohol rehabilitation classes.  He states a Soldier of his (the applicant's) caliber certainly deserves a better effort by the U.S. Army in rehabilitation.  He further states that it is his understanding that the applicant has requested help, but received none.

9.  The applicant submitted a copy of a memorandum, dated 20 May 2002, from his commander in response to the trial defense counsel's memorandum.  The 
commander stated that after the applicant's first offense in January 2002 he was screened by the alcohol and drug counselors and he was not recommended for treatment.  Although the applicant was not command-referred for treatment, the applicant had the opportunity to self-refer for enrollment in the rehabilitation program, which he did not do.  The commander further stated that the applicant did not approach him or any member of the chain of command for assistance in seeking rehabilitation classes.

10.  On 18 July 2002, the applicant was notified by his unit commander that separation action was being initiated against him under the provisions of Army Regulation 635-200, chapter 14-12c (commission of a serious offense) for misconduct – use of illegal substances.  The commander recommended the applicant receive a general, under honorable conditions discharge.

11.  On 26 July 2002, the applicant acknowledged receipt of the proposed separation action against him and consulted with legal counsel.  He was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to him, and the effect of any action taken by him in waiving his rights.  Subsequent to receiving this counseling, the applicant completed his election of rights by waiving his right to have his case considered by an administrative separation board and indicated statements in his own behalf would be submitted by 29 July 2002.  However, no statements were contained in the available records.

12.  On 7 August 2002, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200, chapter 14-12c for commission of a serious offense and directed that the applicant receive a General Under Honorable Conditions Discharge Certificate.

13.  On 16 August 2002, the applicant was discharged accordingly.  The 
DD Form 214 he was issued at the time confirms he held the rank of private/E-1, and had completed a total 4 years, 1 month, and 10 days of active military service.  The DD Form 214 also shows that his character of service was general, under honorable conditions; the separation authority was Army Regulation
635-200, paragraph 14-12c (2) (commission of a serious offense - abuse of illegal drugs); the separation code was "JKK"; his RE code was RE-3; and the narrative reason for his separation was misconduct.  

14.  The applicant authenticated his DD Form 214, issued on 16 August 2002, with his signature in Item 21 (Signature of Member Being Separated).  There is no indication that he questioned his issued character of service, the separation authority, the separation code, the RE code, or the narrative reason for separation listed on the separation document at that time.  

15.  On 10 September 2003, the Army Discharge Review Board denied the applicant's request for an upgrade.

16.  Army Regulation 635-200 sets forth the policy 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 serious offense, conviction by civil authorities, desertion, or absences 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.  Army policy states that a discharge under other than honorable conditions is normally considered appropriate, but a general discharge under honorable conditions or an honorable discharge may be granted.

17.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. Army Reserve (USAR).  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment. That chapter includes a list of armed forces RE codes, including RA RE codes.  RE 3 applies to persons separated from their last period of service with a waivable disqualification.  That regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect.

18.  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.  The SPD code of JKK is the appropriate code to assign Soldiers separated under the provisions of Army Regulation 635-200, chapter 14-12c, by reason of misconduct (abuse of illegal drugs).  Additionally, at the time the SPD/RE Code Cross-Reference Table established RE-3 as the proper RE code to assign to Soldiers separated with an SPD code of JKK.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that he was not allowed to speak with trial defense services until the last minute, that his rights were not fully explained to him, and that he was not allowed to speak with his chain of command were carefully considered and found to be without merit.

2.  The evidence of record shows that the applicant consulted with trial defense services prior to the date of his discharge (in May and again in July 2002), acknowledged that he understood the basis of his discharge, waived his rights to have his case considered by a separation board, and indicated he would submit statements in his behalf, although no such statement was contained in his separation packet or in his available records.

3.  By regulation, the RE-3 code assigned to the applicant was the proper code to assign members separating under the provisions of Army Regulation 635-200, chapter 14-12c for misconduct (abuse of illegal drugs).  The applicant’s record 
shows that he violated the Army’s established drug abuse policy and possessed or used illegal drugs, which compromised the trust and confidence placed in him as a Soldier.  The applicant had a duty to support and abide by the Army’s drug policies.  By abusing illegal drugs, the applicant risked his military career.  Therefore, there is no evidence nor has the applicant presented any evidence to warrant relief.  As a result, his character of service, his separation authority, his RE code, and the narrative reason for his separation were and still are appropriate.  

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)                                         AR20080016306



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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