IN THE CASE OF:	  

		BOARD DATE:	  15 July 2010

		DOCKET NUMBER:  AR20100000704 


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 change of his narrative reason for separation to a more favorable reason.

2.  The applicant states that he was told that his narrative reason for separation would not be displayed on his DD Form 214 (Certificate of Release or Discharge from Active Duty).  He goes on to state that he was not absent without leave (AWOL) as he was accused.  He also states that he made a bad choice 20 years ago and he has not repeated that mistake since his discharge.  He continues by stating that he did not have the mental tools he needed at the age of 19 to make sound judgments about his future; however, his past has allowed him to understand those things he did not understand at the time.  He further states that everything would possibly have been different had he received the counseling and help he needed from the chain of command; however, he has learned from his mistakes and desires to return to service.

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 enlisted in the Regular Army (RA) in Dallas, TX on 25 June 1986 for a period of 3 years and training as a fire support specialist.  He underwent his one-station unit training (OSUT) at Fort Sill, OK and remained assigned there for his first and only permanent duty assignment.  He was advanced to pay grade E-3 on 25 June 1987.

3.  On 5 November 1987, nonjudicial punishment (NJP) was imposed against him for being AWOL from 23 October 1987 until he was apprehended on          26 October 1987.  His punishment consisted of a reduction to the pay grade of  E-2, forfeiture of pay, and extra duty and restriction.

4.  On 6 November 1987, he tested positive for marijuana during a unit urinalysis.

5.  On 13 November 1987, the applicant’s commander notified him that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph
14-12c, for commission of a serious offense - abuse of illegal drugs.  He cited as the basis for his recommendation that the applicant had tested positive for the wrongful use of marijuana, his AWOL offense, his poor performance, lack of discipline, and failure to respond to numerous counseling sessions.  The applicant had 13 negative counseling sessions by his chain of command.  His commander advised him that he was recommending that his service be characterized as under honorable conditions with a general discharge.

6,  After consulting with defense counsel, the applicant elected not to submit a statement in his own behalf and he declined a separation medical examination.

7.  The appropriate authority approved the recommendation for discharge on 1 December 1987 and directed that he be furnished a General Discharge Certificate.

8.  Accordingly, he was discharged under honorable conditions on 7 December 1987, under the provisions of Army Regulation 635-200, paragraph 14-12c by 
reason of misconduct - abuse of illegal drugs.  He was issued a separation code of JKK and a Reenlistment Code of RE-3/3b.  He had served 1 year, 5 months, and 10 days of total active service.  He was provided Copy 1 and Copy 4 of his DD Form 214.  Copy 4 does not show the "Special Additional Information" section that contains the type of discharge, character of service, separation authority, separation code, reenlistment code, narrative reason for separation, and the dates of time lost during the period covered by the DD Form 214.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, commission of a serious offense, and drug abuse.  Although an honorable or general is authorized, a discharge under other than honorable conditions is normally considered appropriate.

10.  Army Regulation 635-5-1 (Special Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states, in pertinent part, that SPD code JKK is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct - abuse of illegal drugs.  The current SPD/RE Code Cross Reference Table stipulates that an RE-4 code will be assigned to members separated under these provisions with an SPD code of JKK.

11.  Army Regulation 635-200 further 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.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the U.S. Army Reserve (USAR).  Table 3-1 included a list of the RA RE codes:

	a.  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.

	b.  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. 

	c.  RE-4 applies to Soldiers who are separated from their last period of service with a nonwaivable disqualification.  They are ineligible for enlistment.



DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  Accordingly, his discharge appropriately characterizes his otherwise undistinguished record of service during the period in question.

3.  The applicant’s contentions have been noted; however, they are not sufficiently mitigating to warrant the relief he seeks when compared to his misconduct and his overall undistinguished record of service.  He has failed to show that his narrative reason for separation is in error or is unjust; therefore there appears to be no reason to change it at this time.

4.  The applicant indicates he desires to return to service.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant is advised that if he desires to reenter military service, 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 are responsible for processing RE code waivers.  However, it is acknowledged that the current RE code for the reason he was separated would indicate a non-waivable disqualification.  

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)                                         AR20100000704



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ABCMR Record of Proceedings (cont)                                         AR20100000704



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