IN THE CASE OF:	

		BOARD DATE:	30 April 2009  

		DOCKET NUMBER:  AR20090000709 


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:

The applicant defers to counsel as pertains to his request, statement, and submission of evidence.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of an earlier request that the applicant's general under honorable conditions discharge be upgraded to an honorable discharge.  In addition, counsel requests a upgrade to the applicant's reenlistment (RE) code on his DD Form 214 (Certificate of Release or Discharge from Active Duty), with the period ending 31 July 1985.

2.  Counsel states:

	a.  that the applicant's discharge took place over 24 years ago and the characterization of his discharge was inequitable because it was based on one isolated incident with no adverse action;

	b.  the applicant has submitted negative drug tests and a psychological evaluation showing that he no longer uses drugs;

	c.  the applicant has become a productive member of society but his discharge inhibits his employment opportunities and other pursuits.

3.  Counsel provides exhibits A thru F, consisting of the applicant's DD Form 214, a 7-page psychological evaluation, and laboratory drug screening results from MEDTOX Laboratories, St. Paul, Minnesota, with result dates 22 July 2008, 
19 August 2008, 19 September 2008, and 31 October 2008.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070013236, on 28 February 2008.

2.  The applicant's contentions are new arguments which will be considered by the Board.  In addition, all the evidence provided is new evidence which will be considered by the Board.

3.  The applicant enlisted in the Regular Army on 30 October 1967 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty (MOS) 76Y (Unit Supply Specialist).  He rose to the senior enlisted rank of Sergeant First Class (SFC/E-7).

4.  On 10 October 1984, the applicant’s commander initiated elimination action against the applicant under the provisions of Army Regulation 635-200, chapter 14, for misconduct.  The reason cited by the commander was the applicant tested positive for marijuana.

5.  On 15 October 1984, the applicant was advised by consulting counsel of the basis for the contemplated separation action.  The applicant was advised of the impact of the discharge action.  The applicant signed a statement indicating that he was advised he was being recommended for discharge under the provisions of Army Regulation 635-200.  The applicant requested counsel, requested to have his case heard by a board of officers, and submitted a statement on his own behalf.

6.  The applicant's statement in his own behalf is not available. 

7.  On 20 May 1985, a board of officers convened and the board members recommended the applicant be eliminated from the service for abuse of a controlled substance and that he be issued a general discharge certificate.


8.  On 27 June 1985, the appropriate authority approved the recommendation and directed the applicant receive a General Under Honorable Conditions Discharge Certificate.  On 31 July 1985, he was separated from the service after completing 17 years, 6 months, and 21 days of creditable active service in the Regular Army.

9.  The applicant's DD Form 214 with the period ending 31 July 1985 shows he was discharged under the provisions of paragraph 14-12c(2), Army Regulation 635-200, for misconduct - drug abuse; item 27 (Reentry Code) shows the entry "3"; and item 26 (Separation Code) shows a separation code of JKK.

10.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 17 March 1987, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB voted that the applicant's discharge was proper and equitable.

11.  Counsel provided a 7-page psychological evaluation from a licensed psychologist, dated 28 September 2008.  The psychologist stated that the applicant was interviewed and completed the Minnesota Multiphasic Personality Inventory (MMPI) test in his office.  The psychologist concluded, "The MMPI-2 is the most widely used objective personality measure in the world.  It has been in widespread and continuous use since 1942.  According to this especially valid and reliable measure, this individual in no way fits the profile of a substance abuser.  Furthermore, the data show him to be an honest, trustworthy person, free from disabling pathology and possessing good moral and psychological character.  These test results confirm his assertion that he has not now and probably never has been a serious substance abuser.”

12.  Counsel provided laboratory drug screening results from MEDTOX Laboratories, St. Paul, Minnesota, with result dates 22 July 2008, 19 August 2008, 19 September 2008, and 31 October 2008.  The drug screenings results conducted on the above dates show that the applicant tested negative for any type of illegal substance.

13.  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.  Paragraph 14-12c(2) states that Soldiers are subject to separation for commission of a serious offense (abuse of illegal drugs) and that abuse of illegal drugs is serious misconduct.  


14.  Army Regulation 635-200, paragraph 3-7, provided that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

15.  Army Regulation 601-210 (Regular Army and Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  Paragraph 
3-21 of the regulation states that reentry code 3 applies to a Soldier who is not considered fully qualified for reentry or continuous service at time of separation, but the disqualification is waivable. 

16.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) identifies separation code JKK as "Misconduct."

17.  The SPD/Reentry Code (RE) cross reference table states that when the SPD is JKK then the reentry code will be 3.

DISCUSSION AND CONCLUSIONS:

1.  Counsel contends that the applicant's discharge was inequitable as it was based on one isolated incident with no other adverse action.  It is acknowledged that the applicant had no other record of misconduct.  However, the evidence of record shows that he was discharged under the provisions of Army Regulation 635-200, chapter 14, with a characterization of general under honorable conditions by reason of administrative discharge for misconduct - drug abuse.  Furthermore, the applicant was a senior noncommissioned officer (NCO) whose drug use violated the standards of conduct expected of a senior NCO and leader of younger Soldiers.  Counsel has failed to show through the evidence submitted or the evidence of record that the applicant's discharge was inequitable.  Therefore, there is no basis for this argument.

2.  The applicant's good post-service conduct and achievements since his discharge are acknowledged.  However, good post-service conduct and achievements alone are not a basis for upgrading a discharge and, upon review, the applicant's good post-service conduct and achievements are not sufficient to mitigate his indiscipline in the Army.


3.  In the absence of evidence to the contrary, it is presumed that the applicant's separation was accomplished in compliance with applicable regulations and without procedural errors that would jeopardize his rights.  Therefore, the characterization of the applicant’s discharge was both proper and equitable.

4.  Evidence of record shows that the applicant was separated from the service for misconduct under the provisions of Army Regulation 635-200, chapter 14-12c(2).  By regulation, this mandated that he be assigned an RE-3 code upon his separation from the Army.

5.  The evidence of record confirms that the applicant’s separation processing was accomplished in accordance with the applicable regulations, to include the RE-3 code assignment.  Lacking independent evidence to the contrary, the Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Therefore, the Board concludes that the assigned RE-3 code was appropriate.  

6.  Although the reentry code of 3 indicates his discharge is waivable, this Board will not substitute its judgment for that of the Army.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X___  ____X___  ____X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  In regards to the applicant’s request for reconsideration for upgrade his general under honorable conditions discharge to an honorable discharge, 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 to amend the decision of the ABCMR set forth in Docket Number AR20070013236, dated 28 February 2008.


2.  In regards to the applicant's request upgrade his RE code, 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)                                         AR20090000709





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ABCMR Record of Proceedings (cont)                                         AR20090000709



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