IN THE CASE OF:	  

		BOARD DATE:	       27 MAY 2009

		DOCKET NUMBER:  AR20090000789 


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 under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge (HD); that the narrative reason for his separation be changed to convenience of the government; and that his Separation Program Designator (SPD) and Reentry (RE) codes be changed accordingly.  

2.  The applicant states, in effect, that his record of promotions showed he was a good Soldier.  He further states that his poor judgment was an act of naivety on his part.  He states that he came to this country from Panama just 1 year before he joined the Army, and it was part of his culture to smoke marijuana.  He claims he was young and immature and knew no better at the time.  He states that he has been traveling around the world and living with his family in Panama on and off; however, he now would like to stay in the United States and do good things for this country.  

3.  The applicant also states that he believes that under the current standard, he would not receive the type of discharge he did.  He claims that it is his belief that the current regulation regarding first time offenders for marijuana use is not as stringent as it was in 1985.  He further indicates that his average conduct and efficiency ratings and behavior and proficiency marks were good and notes that on an Academic Evaluation Report (AER) he received for completing the Primary Leadership Development Course (PLDC), it was noted that he would make a fine noncommissioned officer (NCO). 

4.  The applicant also claims he received awards and decorations, as evidenced by his PLDC completion certificate and the certificate of achievement he received for being the most improved training in the retraining program.  He also identifies five letters of appreciation and commendation he received.  He further indicates his record of promotions was good and that he received a certificate for having no TA-50 deficiencies during the 1981 Annual Inspector General (AGI) inspection.  He further claims that his record of court-marital indicates only an isolated offense and that his ability to serve was impaired by his youth and immaturity.  

5.  The applicant submits a self-authored statement, PLDC AER and Certificate, Certificate of Achievement (Most Improved Trainee), Letters of Commendation and Appreciation (5), DA Form 2-1 (Personnel Qualification Record-Item 18 (Appointments and Reductions) Extract), AGI Award Certificate, and HD Orders. 

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 and entered active duty on 10 June 1980.  He was trained in and awarded military occupational specialty (MOS) 71L (Administrative Specialist).  

3.  The applicant's DA Form 2-1 shows, in Item 18 (Appointments and Reductions), that he was promoted to specialist four (SP4) on 1 March 1982, and that this was the highest rank he attained while serving on active duty.  It also shows that he was reduced to private/E-1 (PV1) on 24 September 1985.  Item 9 (Awards, Decorations & Campaigns) shows that during his active duty tenure, he earned the Army Service Ribbon and Expert Marksmanship Qualification Badge with Rifle Bar.  


4.  The applicant's record contains letters of appreciation and commendation, and award certificates for various duty related accomplishments.  The record documents no specific acts of valor, significant achievement, or service warranting special recognition through award of an individual decoration.   

5.  On 8 April 1985, the unit commander notified the applicant of his intent to initiate separation action on the applicant under the provisions of paragraph 
14-12d, Army Regulation 635-200, by reason of misconduct (alcohol or drug offenses).  The unit commander cited the applicant's 22 April 1981 Summary Court-Martial (SCM) conviction for possession of marijuana on 3 April 1981, his assault offense of 11 June 1984, his wrongful possession of marijuana on 
11 December 1984, and his assault consummated by battery offense of 
11 February 1985, as the basis for taking the action. 

6.  On 9 April 1985, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of those rights.  Subsequent to receiving this legal counsel, the applicant completed an election of rights in which he requested consideration of his case by a board of officers, personal appearance before a board of officers, and consulting counsel.  The applicant also elected not to submit statements in his own behalf.  

7.  On 2 July 1985, a board of officers convened to consider the applicant's elimination, with the applicant and his counsel present.  

8.  On 3 August 1985, after carefully considering all the evidence before it found that the applicant did, by a preponderance of the evidence, on or about 11 December 1984, purchase with the intent to distribute a controlled substance, hashish and that on or about 11 February 1985, did unlawfully strike his wife in the face with his fist.  Based on these findings, the board of officers found the applicant undesirable for retention in the military service, and it recommended he be discharged with an UOTHC discharge.  

9.  On 24 September 1985, the separation authority approved the findings and recommendations of the board of officers in the applicant's case, and directed that the applicant be discharged under the provisions of paragraph 14-12c and 14-12d, Army Regulation 635-200 with an UOTHC discharge and that he be reduced to the lowest enlisted grade.  On 15 October 1985, the applicant was discharged accordingly.  


10.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant on 15 October 1985, the date of his discharge, confirms he was separated under the provisions of paragraph 14-12c. Army Regulation 635-200, by reason of misconduct-abuse of illegal drugs, and that based on this authority and reason for discharge, he was assigned a SPD code of JKK and an RE code of 3.  It also shows that during his active duty tenure, he earned the ASR, NCO Professional Development Ribbon with Numeral 1, and Expert Marksmanship Qualification Badge with Rifle Bar.  

11.  The applicant provides an AER and certificate that show he achieved course standards and successfully completed the PLDC in MOS 71L on 4 February 1983.  The remarks section of the AER contains a notation that indicates the applicant would make a fine NCO.  He also provides an achievement certificate,  dated 23 June 1981, which indicates he was the most improved trainee in the retraining program during the period between 7 May through 23 June 1981; and five letters of commendation and appreciation he received for various duty related accomplishments between February 1981 and January 1983.  In addition, he provides a unit award certificate cosigned by his unit first sergeant and unit commander, which he received  for his having no deficiencies on his TA-50 during the AGI inspection for 1981.  Further he provides an extract of Item 9 of his DA Form 2-1, which outlines his record of promotions and reductions and honorable discharge orders that were issued in conjunction with his 6 July 1983 discharge and 7 July 1983 reenlistment.  

12.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), dated 6 June 2005, provides the current policies, standards, and procedures for the separation of enlisted personnel from the Army.  Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.  Paragraph 14-3 contains guidance on characterization of service for members separated under chapter 14.  It states, in pertinent part, that a discharge UOTHC is normally appropriate for a Soldier discharged under this chapter.  The separation authority may direct a general, under honorable conditions discharge (GD) if such is merited by the Soldier's overall record.  A characterization of honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be inappropriate.  An HD may be approved only by the commander exercising general court-martial jurisdiction, or higher authority, unless authority is properly delegated. 


13.  Paragraph 14-12 of the same regulation identifies conditions that subject Soldiers for discharge for misconduct.  Paragraph 14-12a provides for misconduct separations for minor misconduct and paragraph 14-12b provides for misconduct separations for a pattern of misconduct.  

14.  Paragraph 14-12c of the same paragraph and regulation provides for the separation of members for misconduct based on the commission of a serious offense.  Sub-paragraph (2) identifies abuse of illegal drugs as serious misconduct and provides for separation for this reason under paragraph 14-12c.  Paragraph 14-12c(2)b further states, in pertinent part, that all Soldiers against whom charges will not be referred to a court-martial authorized to impose a punitive discharge or against whom separation action will not be initiated under the provisions of Chapter 9 of this regulation or Section II of this chapter, will be processed for separation under the provisions of a, b, or c above as applicable.  "Processed for separation" means that separation action will be initiated and processed through the chain of command to the separation authority for appropriate action. 

15.  The version of Chapter 14, Army Regulation 635-200, in effect at the time of the applicant's discharge, was relatively the same as the current version of the regulation regarding characterization of service and also provided that an UOTHC discharge was normally appropriate for members separated under chapter 14, as were the provisions for categorizing drug abuse as a serious offense that qualified for separation processing under paragraph 14-12c.  That earlier version of the regulation was less stringent in that it did not require initiating separation action for drug offenders as the current version of the regulation does.  

16.  Army Regulation 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 United States 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-4 applies to persons who have a nonwaivable disqualification.  RE-3 applies to persons who have a waivable disqualification.  

17.  Army Regulation 635-5-1 (SPD Codes) prescribes the specific authorities (statutory or other directives), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  Table 2-3 of the SPD code regulation identifies the SPD codes applicable to enlisted personnel and lists the SPD code of JKK as being applicable to members separated under the provisions of chapter 14-12c,  Army Regulation 635-200, by reason of misconduct (commission of a serious offense-drug abuse).  
18.  The current SPD/RE Cross Reference Table identifies RE-4 as the proper code to assign members separated with a JKK SPD code, while the version in effect at the time of the applicant's discharge identified RE-3 as the proper code for members separated with a JKK SPD code. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he would not have received the same discharge, reason for discharge, SPD and RE codes under current standards was carefully considered.  However, there is insufficient evidence to support this claim.  The current standard regarding characterization of service is relatively the same as the version in effect at the time of the applicant's discharge.  Under both versions, the issue of an UOTHC discharge was normally considered appropriate for members separated under chapter 14.  In fact, the current regulatory standard requires separation processing for drug related offenses while the version in effect at the time of the applicant's discharge had no such requirement.  Further, although the version in effect at the time of the applicant's discharge only required the assignment of RE-3 code for drug offenders, the current version of the regulation requires assignment of RE-4 code for members separated for the same reason.  As a result, the current regulation is more stringent than the version in effect at the time of the applicant's discharge and does not provide for a more favorable characterization of service, reason for discharge, or SPD and RE code assignments.  

2.  The applicant's duty and training related accomplishments and record of promotions, as noted in the supporting documents he provided were noteworthy; however, his record documented no acts of valor, significant achievement, or service warranting special recognition through an individual award or decoration. As a result, his accomplishments and record of service were not sufficiently meritorious to support the issue of an HD or GD by the separation authority at the time of his discharge, and does not support an upgrade of his discharge at this late date.  

3.  The applicant's record shows he was nearly 21 years old and had completed more than 1 year of service when he committed his first drug related offense and that he was nearly 25 and had completed nearly 4 years of service when he committed his second drug related offense and the other offenses that led to his being processed for separation.  Clearly this shows the applicant was sufficiently mature to serve satisfactorily had he chose to do so.  As a result, this factor is not sufficiently mitigating to support relief in this case.  


4.  The applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process, which included consideration of his case by a board of officers, which determined by a preponderance of the evidence that he committed serious offenses, which included the drug related offense which was the primary basis for his separation and that recommended his UOTHC discharge.  Absent any evidence of error or injustice related to the applicant's separation processing there is an insufficient evidentiary basis to support an upgrade of his discharge, a change in the narrative reason for his discharge, and/or a change to the properly assigned SPD and/or RE codes, which were and remain valid.  

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.




      _______ 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)                                         AR20090000789



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ABCMR Record of Proceedings (cont)                                         AR20090000789


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