IN THE CASE OF:	  

		BOARD DATE:	    20 April 2010

		DOCKET NUMBER:  AR20090017497 


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 separation code and narrative reason for separation so he may reenter military service.  

2.  The applicant states he believes he was accused and judged unfairly.  He was discharged from the Army in 1989 with an under honorable conditions (general) character of service.  He is currently seeking to reenter the military.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 14 August 1989; copies of five character reference letters, dated on miscellaneous dates in 1988 and 1989; a copy of his DA Form 2166-6 (Enlisted Evaluation Report) for the period August 1987 through August 1988, a copy of his Good Conduct Medal Certificate; copies of several awards and certificates of training; and a report of his polygraph examination, dated 17 April 1989, in support of his request. 

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 records show he enlisted in the Regular Army for a period of 3 years on 10 May 1984 and held military occupational specialty 94B (Food Service Specialist).  He attained the rank/grade of sergeant (SGT)/E-5 in July 1987 and executed a 3-year reenlistment in July 1988.  He was assigned to the 189th Maintenance Battalion, Fort Bragg, NC.

3.  His records also show he served in Germany from November 1985 to November 1988.  His awards and decorations include the Expert Marksmanship Qualification Badge with Rifle Bar, Sharpshooter Marksmanship Qualification Badge with Grenade Bar, Army Service Ribbon, Overseas Service Ribbon, Noncommissioned Officer Professional Development Ribbon, Good Conduct Medal, and Army Achievement Medal.

4.  On 18 January 1989, he participated in a unit urinalysis and his urine sample tested positive for cocaine.

5.  On 6 April 1989, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using cocaine between on or about 20 December 1988 and 18 January 1989.  His punishment consisted of a reduction to specialist four (SP4)/E-4, a forfeiture of $630.00 pay for 2 months ($150.00 of which was suspended until 6 July 1989), 30 days of extra duty, and 30 days of restriction (suspended until 6 July 1989).

6.  On 23 February 1989, his immediate commander initiated a Bar to Reenlistment Certificate against him as a result of the positive urinalysis.  He was furnished a copy of this bar and he submitted a statement on his own behalf.  The statement is not available for review with this case.  His bar was ultimately approved by the battalion commander. 

7.  On 17 April 1989, he underwent a polygraph examination at Fort Bragg.  The examiner opined that the applicant was truthful in his responses to relevant questions regarding his denial of having used cocaine.  However, he stated that during the first part of January 1989, he attended a party where he suspected others were using drugs, but he did not knowingly participate as he was drinking alcohol.

8.  As a result of the polygraph examination, his commander set aside his NJP punishment.
9.  On 31 May 1989, the immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 
14-12(c) of Army Regulation 635-200 (Personnel Separations) for misconduct and drug abuse was cited as the basis for the recommendation.  The immediate commander recommended that the applicant be issued a general discharge under honorable conditions.

10.  On 1 June 1989, he acknowledged receipt of the separation notification, consulted with legal counsel, and was advised of the basis for the contemplated separation action for misconduct and its effect.  He acknowledged that he had been advised of the rights available to him and of the effect of any action taken by him in waiving his rights, and of the type of discharge and its effect on further enlistment or reenlistment.  The applicant also acknowledged he understood he could expect to encounter substantial prejudice in civilian life if a less than honorable discharge was issued to him and that he could be ineligible for many or all benefits as a veteran under Federal and State laws.  The applicant elected to submit a statement on his own behalf.

11.  The applicant's statement indicated that he had been an outstanding Soldier with multiple awards and decorations.  He added that despite being reduced to SP4/E-4, he continued soldiering on and kept his head high.  He stated that he was innocent regarding the use of drugs.  He also submitted several certificates, awards, and statements of support from various individuals who commented on his professionalism and recommended that he be retained in the Army.

12.  On 1 June 1989, his immediate commander initiated separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 for misconduct, commission of a serious offense (drug abuse).  However, two entries were lined through as follows:

	a.  In paragraph 1 of the recommendation memorandum, the immediate commander stated "Under the provisions of Chapter 14-12c(2), I recommend the following individual be separated from the United States Army prior to the expiration of his term of service with a General Discharge."  The immediate commander lined through the words "separated from the United States Army prior to the expiration of his term of service with a General Discharge" and hand-wrote the word "retained" and placed his initials.

	b.  In paragraph 1(p) of the recommendation memorandum, the immediate commander lined through and initialed the entry "I do not consider any other disposition is appropriate because the United States Army nor I will tolerate a Soldier's involvement with drugs."
13.  On 5 June 1989, his immediate commander recommended disapproval of the request and remarked that the applicant underwent a polygraph which indicated that he was or, believes he was telling the truth about not using cocaine.

14.  On 7 June 1989, his intermediate commander recommended the applicant's retention and opined that based on his otherwise spotless record, his insistence that he did not knowingly consume cocaine, and his sincere desire to be an outstanding Soldier, he should be retained, continue in the drug and alcohol prevention program, and undergo regular urinalysis screening.

15.  On 8 June 1989, a military attorney reviewed the separation packet and found it legally sufficient.

16.  On 24 July 1989, the separation authority approved the applicant’s discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct – abuse of illegal drugs – and directed he be furnished a general discharge.  Accordingly, he was discharged on 14 August 1989.  His DD Form 214 confirms he was discharged with a character of service of under honorable conditions (general) and that he had completed a total of 5 years, 3 months, and 5 days of creditable active military service.  Item 26 (Separation Code) of this DD Form 214 shows the entry "JKK" and item 28 (Narrative Reason for Separation) shows the entry "Misconduct - Abuse of Illegal Drugs).

17.  He submitted the following documents:

	a.  Five character reference letters, dated in 1988 and 1989, from various individuals commenting on his professionalism and dedication. 

	b.  A copy of his DA Form 2166-7 for the period August 1987 through August 1988 that shows he received a successful rating.

	c.  A copy of his polygraph results, dated 13 April 1989.

18.  Army Regulation 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.

19.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides that 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 Department of Defense and the military services to assist in the collection and analysis of separation data.  The SPD code of "JKK" is the correct code for Soldiers separated under the provisions of chapter 14-12(c) of Army Regulation 635-200 by reason of misconduct - abuse of illegal drugs.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his narrative reason for separation and RE code should be upgraded to a more favorable code that would allow him to reenter the military. 

2.  The evidence of record shows he tested positive for cocaine during a unit urinalysis.  His commander punished him under NJP and initiated a bar to reenlistment against him.  He took a polygraph, and the results supported his contention that he had not used illegal drugs.  Nevertheless, his chain of command initiated separation action against him but recommended his retention. He consulted with counsel and was advised of his rights.  After a legal review determined his administrative discharge proceedings were legally sufficient, the separation authority approved his discharge by reason of misconduct - abuse of illegal drugs.

3.  The evidence of record confirms the applicant’s narrative reason for separation and his SPD code were assigned based on the fact that he was discharged under the provisions of chapter 14 of Army Regulation 635-200 due to misconduct.  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 this paragraph is "Misconduct - Abuse of Illegal Drugs" and the appropriate SPD code associated with this discharge is "JKK." 

4.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The ABCMR does not change valid separation codes for the purpose of making an individual eligible for military service.  The applicant is advised that if he desires to reenter the military, he should contact a local recruiter who can best advise him on his eligibility for returning to military service.  Those individuals can best advise a former service member as to the needs of the service at the time and may process enlistment waivers for the applicant.

5.  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.




      _________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)                                         AR20090017497



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ABCMR Record of Proceedings (cont)                                         AR20090017497



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