IN THE CASE OF:	  

		BOARD DATE:	        24 February 2009

		DOCKET NUMBER:  AR20090001545 


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 correction of his "JKQ" Separation Code on his DD Form 214 (Certificate of Release or Discharge from Active Duty) to a more favorable code.  

2.  The applicant states that he believes the record is unjust because it does not reflect who he really is and does not enable him to have a second chance at serving his country.  He adds that he feels that other punitive actions placed against him were not taken into account.  

3.  The applicant provides the following documentary evidence in support of his application:

	a.  Self-authored statement, dated 3 March 2008.

	b.  Copy of an Excellent Volunteer Award Certificate, dated 27 May 1998.  

	c.  Copy of his Honorable Discharge Certificate, dated 2 November 2000.

	d.  Copies of certificates, dated 16 January 2001 and 27 March 2000, showing awards of the Army Achievement Medal and the Army Commendation Medal.  

	e.  Copy of his certificate of promotion, dated 7 February 2001.

	f.  Copy of his certificate of merit, dated 3 November 2000.
	g.  Copy of his certificate, dated 1 November 2004, showing award of an associate of applied science degree.  

	h.  Copy of his certificate, dated 15 November 2006, recognition as a certified professional. 

	i.  Copies of his certificate of appreciation during Operation Iraqi Freedom; certificate of recognition, dated 6 May 2007, and certificate of marriage, dated 15 September 2007.

	j.  Copy of his Resume and college transcripts. 

	k.  Memorandum, dated 9 January 2003, recommendation for separation.   

	l.  DA Form 2627 (Record of Proceedings Under Article 15 of the Uniform Code of Military Justice (UCMJ)), dated 26 June 2002. 

	m.  Reissued DD Form 214, dated 28 May 2003.

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.  With prior enlisted service, the applicant's record show he enlisted in the Regular Army for a period of 4 years on 10 May 1997.  He completed advanced individual training and was awarded military occupational specialty (MOS) 92A (Automated Logistical Specialist).  He also executed a 3-year reenlistment on 3 November 2000 and was promoted to sergeant (SGT)/E-5 on 7 February 2001.

3.  The applicant’s records further show he was awarded the Army Commendation Medal, the Army Achievement Medal, the Good Conduct Medal, the National Defense Service Medal (2nd Award), the Noncommissioned Officer Professional Development Ribbon, the Overseas Service Ribbon, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

4.  On 7 May 2002, the applicant participated in a unit urinalysis and as a result he tested positive for marijuana. 

5.  On 26 June 2002, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ, for wrongfully using marijuana between on or about 7 April 2002 and on or about 7 May 2002.  His punishment consisted of a reduction from SGT/E-5 to specialist (SPC)/E-4, a forfeiture of $840.00 pay for one month, 45 days of extra duty, and 45 days of restriction.  He appealed his punishment to the next higher authority; however, his appeal was denied. 

6.  On 20 December 2002, 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; and failure to report.  The applicant subsequently acknowledged receipt of the separation memorandum, consulted with legal counsel, and was advised of the basis for the contemplated separation 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 elected his case be heard by an administrative separation board. 

7.  On 22 April 2003, an administrative separation board convened and heard the applicant’s case with the applicant and his counsel present.  Based on its findings, the administrative separation board recommended the applicant’s separation with a characterization of service of general, under honorable conditions.

8.  On 9 March 2003, the separation authority approved the administrative separation board’s findings and recommendations, waived further rehabilitative efforts, and directed that the applicant be discharged with a characterization of service of general, under honorable conditions.   Accordingly, the applicant was discharged on 28 May 2003.  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 6 years, 2 months, and   19 days of creditable active military service.  Item 26 (Separation Code) of this DD Form 214 shows the entry "JKQ" and Item 27 (Reentry Code) shows the entry "3."


9.  On 6 August 2004, the Army Discharge Review Board (ADRB) reviewed the applicant’s petition for an upgrade and found that an upgrade was warranted.  Accordingly, the ADRB voted to grant the applicant relief in the form of an upgrade of the characterization of service to fully honorable.  The ADRB also determined that the reason for discharge was both proper and equitable and voted not to change it.  

10.  In his self-authored statement, dated 3 March 2008, the applicant describes his entry on active duty and his overall military experience at Fort Bragg, North Carolina, where he established himself as a dependable, honest, and quality Soldier.  In addition, while serving in Korea, he describes his personal challenges with his wife back home which ultimately resulted in a divorce.  He was eventually reassigned to Fort Eustis, Virginia, where he had an opportunity to mature as a young leader, but faced resistance from his ex-spouse who did not allow him to see his children.  He ended up with a restraining order placed against him by his ex-spouse, an anger management class, and a consult to drug/alcohol evaluation.  His life became an emotional rollercoaster and despite his attempt to remain focused on his military career, his confidence was bruised and he eventually made a mistake of using drugs.  He further states that his chain of command was not sympathetic to his personal challenges and punished him severely.  Nevertheless, since his discharge, he has completed college, served in Iraq as a contractor for three years, and started a new life.  He concludes that he recently visited an Air Force recruiter where he discovered that he is unable to reenlist because of his separation code and appeals to the Board to look at his entire record and not just his one incident.  

11.  AR 635-200, in effect at the time, set 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.

12.  Army Regulation 635-5-1 (Separation Program Designator Codes) states that the Separation Program Designator (SPD) codes are three-character alphabetic combinations, which identify reasons for, and types of separation from active duty.  The primary purpose of SPD codes is to provide statistical accounting of reasons for separation.  They are intended exclusively for the internal use of DOD and the military services to assist in the collection and analysis of separation data.  The "JKQ" SPD code is the correct code for Soldiers separating under chapter 14-12(c) of AR 635-200 by reason of misconduct.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his separation code should be upgraded to a favorable code that would, in effect, allow him to reenter military service.

2.  The evidence of record confirms that the applicant’s separation code was assigned based on the fact that he was separated under the provisions of chapter 14, AR 635-200 due to misconduct, commission of a serious offense (drugs).  Absent the misconduct, 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” and the appropriate separation code associated with his discharge is "JKQ." 

3.  The ADRB considered the applicant's narrative reason for separation, separation code, and RE code, when it directed its upgrade action and determined that these codes should not be changed because of this misconduct which led directly to the applicant's discharge.  Although the ADRB directed that the applicant's discharge be upgraded, the underlying reason for his discharge remained the same, his misconduct.  

4.  The applicant’s post service achievements and accomplishments are noted.  Furthermore, his desire to reenter military service is a noble one and the Board commends him for his patriotism.  However, the Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The separation code assigned to the applicant at the time of his discharge is correct.  

5.  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 did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to relief

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)                                         AR20090001545





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ABCMR Record of Proceedings (cont)                                         AR20090001545



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