BOARD DATE:	  14 September 2010

		DOCKET NUMBER:  AR20100008819 


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 the following corrections to her DD Form 214 (Certificate of Release or Discharge from Active Duty):

* Change her type of separation
* Upgrade her character of service from general under honorable conditions to fully honorable
* Change her separation authority
* Change her separation code
* Upgrade her reentry eligibility (RE) code of RE-3 to a more favorable RE code 
* Change her narrative reason for separation

2.  The applicant states it’s been 29 years since her separation from the military and the narrative reason for her discharge makes it hard to find suitable employment.

3.  The applicant provides a letter from a former employer, her DD Form 214, a GRTC Transit System 2008 Benefits Statement, a Deed of Trust Note, a Settlement Statement, and a letter from the Department of Veterans Affairs (DVA) in support of her 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 on 14 April 1982.

3.  The applicant’s service record shows she tested positive for marijuana on 2 February 1984.

4.  The results of a 14 November 1984 urinalysis test determined the applicant tested positive for use of marijuana and cocaine.

5.  On 31 January 1985, the company commander notified the applicant of his intent to recommend separation action under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12c for misconduct - drug abuse.  She was advised of her rights.  She acknowledged the notification on the same day and indicated she desired military legal counsel be appointed to assist her.

6.  On 8 February 1985, the applicant consulted with legal counsel.  She requested consideration and personal appearance of her case by a board of officers and requested representation by counsel.  She also indicated states in her behalf were being submitted; however, her statements are not available for review.

7.  The company commander subsequently recommended the applicant's separation from the service under the provisions of Army Regulation 635-200, paragraph 14-12c, because of misconduct.  The specific reason was the results of a 14 November 1984 urinalysis test determined the applicant used marijuana and cocaine, both of which are controlled substances.


8.  On 5 April 1985, the separation authority waived counseling and rehabilitative requirements and directed the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct - drug abuse, with issuance of a General Discharge Certificate.

9.  Accordingly, the applicant was discharged on 15 April 1985 under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct - drug abuse.  At the time of her discharge, she completed 3 years and 2 days total active military service.    

10.  Her DD Form 214 shows the following entries:

* Item 23 (Type of Separation) - “Discharge”
* Item 24 (Character of Service) - “UNDER HONORABLE CONDITIONS (GENERAL)”
* Item 25 (Separation Authority) - “PARA 14-12c, SECTION III, AR 635-200”
* Item 26 (Separation Code) - “JKK”
* Item 27 (Reenlistment (RE) Code) - “3”
* Item 28 (Narrative Reason for Separation) - “MISCONDUCT - DRUG ABUSE”

11.  The applicant provided letters from her former employer and the DVA which indicate she was employed at the GRTC Transit System from July 2005 to November 2009 and she was enrolled in the Compensated Work Therapy/Transitional Work Experience, which is a therapeutic work program, from October 2004 to June 2005.  

12.  The applicant’s service record does not indicate she applied to the Army Discharge Review Board within its 15-year statute of limitations.

13.  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.  Individuals in pay grades E-5 and above must be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 may also be processed after a first drug offense and must be processed for separation after a second offense.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.  However, the separation authority could direct a general discharge if such was merited by the Soldier's overall record.  


Only a General Court-Martial Convening Authority could approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

14.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

15.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or statuary 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 the SPD code of "JKK" (as shown on the applicant's DD Form 214) is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, by reason of misconduct - drug abuse.  The SPD/RE Code Cross Reference Table stipulates that an RE-3 code will be assigned to members separated under these provisions with an SPD code of "JKK."

16.  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. 

17.  Army Regulation 635-5 (Personnel Separations - Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It states, in pertinent part, for:

* item 23, enter one of the terms listed below:

* Relief from active duty
* Discharge
* Retirement
* Separation and order to additional active duty
* Relief from ADT [Active duty for Training]
* Release from custody and control of the Army
* Relief from ADT and discharge from the Reserve of the Army

* item 24, enter one of the authorized entries:

* Honorable
* Under Honorable Conditions (General)
* Under Other Than Honorable Conditions
* Bad Conduct
* Dishonorable
* To be determined
* Not applicable (for release from custody and control of the Army due to void or voided enlistments)

* item 25, enter the regulatory or statutory authority cited in directives authorizing separation on copies 2, 4, 7, and 8 only.

* item 26, enter the proper SPD, representing the reason for separation on copies 2,4,7, and 8 only.

* item 27, enter the appropriate RE code on copies 2,4, 7 and 8 only.

* item 28, enter the reason for separation (shown in Army Regulation 635–5–1) based on the regulatory or statutory authority.  Do not enter the narrative reason for separation on copy 1 of DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states it’s been 29 years since her separation from the military and the narrative reason for discharge makes it hard for her to find suitable employment.  However, employment is not a sufficiently mitigating factor to grant relief in this case.

2.  The applicant’s letters from her former employer and DVA are acknowledged.  However, these documents are insufficient as a basis to grant relief.
3.  The applicant’s service record shows she tested positive for marijuana and cocaine.  

4.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized her rights.

5.  The applicant was discharged on 15 April 1985 under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct-drug abuse.  In accordance with the preparation instructions for item 28 of the DD Form 214, the narrative reason for separation is taken from Army Regulation 635-5-1.  Therefore, the correct narrative reason for separation as provided in Army Regulation 635-5-1 was properly entered on his DD Form 214.

6.  The applicant’s DD Form 214 shows she was separated with a separation code of "JKK" and she was assigned an RE code of RE-3 in accordance with the governing regulation in effect at the time.

7.  An under other than honorable conditions discharge was normally appropriate for a Soldier discharged under chapter 14 for misconduct.  It appears the separation authority determined that the applicant's overall service did not meet the standards of acceptable conduct and performance of duty to warrant recommendation of an honorable discharge and characterized her service as under honorable conditions (general).  However, there is insufficient evidence that would warrant upgrading her discharge to fully honorable. 

8.  The applicant's RE code is based on her reason for discharge and cannot be changed unless the applicant's narrative reason for discharge is changed.  Her narrative reason for discharge was based on misconduct - drug abuse and there is no basis upon which this reason should be changed.

9.  In view of the foregoing, there is no basis for granting the applicant's requested 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)                                         AR20100008819



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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