BOARD DATE:	  3 December 2009

		DOCKET NUMBER:  AR20090011296 


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 his narrative reason for separation and Reentry (RE) Code be changed to a more favorable reason and code that will allow him to reenter the service.

2.  The applicant states that his records are unjust because at the time nonjudicial punishment (NJP) was being imposed against him, he was told that he would be allowed to stay in the Army as long as he completed the Army Substance Abuse Program (ASAP).  However, he was not allowed to complete the program because of a change in leadership and he was chaptered out of the Army with 2 days notice.  He goes on to state that he served 8 years and was planning on making it a career; however, he made one mistake that he was not allowed to fix.  He desires to have his narrative reason for separation and RE Code changed so that he may be able to return to the military or be eligible for a government job.

3.  The applicant provides no additional documents with 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 was born on 26 March 1975 and enlisted in the Regular Army on 9 February 1995 for a period of 4 years and training as an infantryman.  He completed his one-station unit training (OSUT) at Fort Benning, Georgia and was transferred to Fort Irwin, California for his first duty assignment as a light weapons infantryman.  He remained on active duty through continuous reenlistments and was promoted to the rank of sergeant on 8 March 2002.

3.  On 28 January 2003, NJP was imposed against the applicant for two specifications of using marijuana in 2002.  His punishment consisted of a reduction to the rank of specialist/pay grade E-4, a forfeiture of pay, extra duty and restriction.  He did not appeal his punishment.

4.  On 5 February 2003, the applicant was counseled by his first sergeant and advised that he had two drug offenses, and the regulation mandated that separation action be initiated.

5.  On 31 March 2003, the applicant's commander notified him that he was initiating action to separate him from the Army under the provisions of Army Regulation 635-200, paragraph 14-12c, due to misconduct - abuse of illegal drugs.  He cited the applicant's wrongful use of marijuana on 18 October and 17 December 2002 as the basis for his recommendation. 

6.  On 2 April 2003, after consulting with defense counsel, the applicant submitted a request for a conditional waiver in which he agreed to waive his right to appear before an administrative separation board in return for a characterization of service no less than under honorable conditions (general discharge).  He also elected not to submit a statement in his own behalf.

7.  The company commander recommended that the applicant be issued a general discharge and the battalion commander recommended that the applicant be retained on active duty or that he be issued an honorable discharge. 

8.  The appropriate authority approved the recommendation for discharge on 12 May 2003 and directed that the applicant be furnished a General Discharge Certificate.

9.  Accordingly, he was discharged under honorable conditions on 29 May 2003, under the provisions of Army Regulation 635-200, paragraph 14-12c (2) for misconduct.  He had served 8 years, 3 months, and 21 days of total active service and was issued an RE Code of "4" and a separation code (SPD) of “JKK.”

10.  On 8 November 2004, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  The ADRB determined that while it did not condone his misconduct, his discharge was inequitable and his misconduct was mitigated by his overall length of service and the battalion commander's recommendation for retention or the issuance of an honorable discharge.  Accordingly, the ADRB voted unanimously to upgrade his discharge to fully honorable and also voted unanimously that his reason for discharge was proper and equitable and should not be changed.  Accordingly, he was issued a new DD Form 214 to reflect his honorable discharge for misconduct and a RE Code of "4."

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service. First time drug offenders in the grade of sergeant and above, and all Soldiers with three years or more of total military service, active and reserve, will be processed for separation upon discovery of a drug offense.  All Soldiers must be processed for separation after a second offense.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

12.  Pertinent Army regulations provide 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.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment processing into the Regular Army and the 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.

13.  RE-4 indicates that a person is not qualified for continued Army service by virtue of being separated from the service with a nonwaivable disqualification.  The applicable regulations direct that an RE Code of 4 be issued for a SPD of “JKK” which indicates separation for misconduct for drug abuse.  



DISCUSSION AND CONCLUSIONS:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The applicant has failed to show through the evidence submitted or the evidence of record that he was issued the wrong Narrative Reason for Separation and RE Code at the time of separation.

3.  Notwithstanding the actions by the ADRB to upgrade his discharge, the applicant was properly separated under the provisions of Army Regulation     635-200, chapter 14, for misconduct due to drug abuse and was properly issued a separation code of “JKK” and an RE code of “4” in accordance with the applicable regulations.

4.  The applicant was a noncommissioned officer (NCO) with 8+ years of service when he violated the trust placed in him as an NCO, leader and Soldier by using drugs on more than one occasion.  In doing so he knowingly jeopardized his career and placed his chain of command in a position where they had to initiate action to process him for separation.  

5.  Since the applicant was an E-5, he was properly processed for separation in accordance with the applicable regulation with no indication of any violations of any of his rights.

6.  The applicant's contention that he was unreasonably given 2 days notice prior to being discharged has been considered and found to lack merit.  The applicant was initially notified that action was being initiated to recommend him for separation in February 2003 and he was not discharged until 29 May 2003.  Accordingly, the notification period was more than adequate.

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)                                         AR20090011296



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ABCMR Record of Proceedings (cont)                                         AR20090011296



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