IN THE CASE OF:	  

		BOARD DATE:	  19 October 2010

		DOCKET NUMBER:  AR20100011686 


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, in effect, change in her reentry eligibility (RE) code from a "4" to a more appropriate code for an honorable discharge by reason of secretarial authority.

2.  The applicant states, in effect, that she believes it was an oversight that her RE code was not changed from a "4" to a more appropriate code when her discharge was upgraded to an honorable discharge by reason of secretarial authority.

3.  The applicant provided a copy of her DD Form 214 (Certificate or Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows she enlisted in the Regular Army on 3 August 1995.  She completed training and she was awarded military occupational specialty 74C (Telecommunications Center Operator).  The applicant was subsequently reassigned to Germany and assigned to Headquarters and Headquarters Company, 37th Transportation Command.

2.  On 15 April 1997, the applicant received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for wrongfully using cocaine on or about 21 January 1997.

3.  On 28 August 1997, the applicant was ordered to report for a mental health evaluation based on her implicit and specific threats to commit suicide.

4.  On 15 September 1997, the applicant was evaluated by a Staff Psychiatrist at Landstuhl Regional Medical Command.  After evaluating the applicant the examiner found the:

* applicant met the retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, and there was no psychiatric disease or defect which warrants disposition through medical channels
* applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in administrative/board proceedings
* applicant's condition and the problems presented were not amenable to hospitalization, treatment, transfer, disciplinary action, training, or reclassification to another type of duty within the military.  It was unlikely that efforts to rehabilitate or develop the applicant into a satisfactory member of the military would be successful
* applicant is psychiatrically cleared to any administrative action deemed appropriate by the command

5.  On 29 October 1997, the applicant was notified by her unit commander that separation action was being initiated against her under the provisions of Army Regulation 635-200, chapter 14-12c(2), by reason of commission of a serious offense - abuse of illegal drugs.  The commander recommended the applicant be discharged with a general discharge.

6.  On 15 December 1997, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200, chapter 14-12c for commission of a serious offense and directed that the applicant receive a General Discharge Certificate.

7.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) she was issued at the time confirms she had completed a total 2 years, 3 months, and 22 days of active military service.  The DD Form 214 also shows her character of service was general, under honorable conditions; the separation authority was Army Regulation 635-200, paragraph 14-12c(2); the separation code was "JKK"; her RE code was RE-4; and the narrative reason for her separation was "misconduct."

8.  On 28 March 2006, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of her discharge from a general discharge to an honorable discharge.  She stated her discharge was inequitable based on one isolated incident in 28 months of service.

9.  On 14 February 2007, the ADRB reviewed the applicant's petition for an upgrade of her general discharge.  After a careful review of all the applicant’s military records, the discharge was determined to be improper.  The ADRB noted that the unit commander used “Board Procedures” when notifying the applicant that he was initiating action to separate her under the provisions of Chapter 14, Army Regulation 635-200, by reason of misconduct.  By using “Board Procedures” the authority for approval of the applicant’s separation rested with the General Court-Martial Convening Authority (GCMCA).  The evidence of record shows that someone other than the GCMCA approved the applicant’s discharge.  Accordingly, the ADRB unanimously voted to grant relief in the form of an upgrade the characterization of her discharge to honorable and to change the narrative reason for her separation to Secretarial Authority.  However, the ADRB decision did not entail a change to her RE code since the basis for her discharge, misconduct - commission of a serious offense - abuse of illegal drugs, did not change.

10.  Accordingly, the applicant was issued a new DD Form 214 that shows she received an honorable discharge.  The separation authority was changed to Army Regulation 635-200, paragraph 5-3, by reason of secretarial authority with a corresponding separation code of "JFF."  However, her RE code remained as an RE-4.

11.  Army Regulation 635-200 sets forth the policy for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  Army policy states that a discharge under other than honorable conditions is normally considered appropriate, but a general, under honorable conditions discharge or an honorable discharge may be granted.

12.  Army Regulation 635-5-1 (Separation Code 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 the SPD code JKK, which was the SPD code on 

her original DD Form 214, was the appropriate code to assign to Soldiers discharged 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-4 code will be assigned to members separated under these provisions with an SPD code of JKK.

13.  Army Regulation 635-5-1 further states, in pertinent part, that the SPD code of JFF, which is the SPD code on her new DD Form 214, is the appropriate code to assign to Soldiers under the separation authority of Army Regulation 635-200, paragraph 5-3, by reason of secretarial authority.  The SPD/Cross Reference Table stipulates that for an SPD code of JFF, the RE code was to be determined.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her RE code should be changed to a more appropriate code for an honorable discharge by reason of secretarial authority.

1.  The applicant’s petitioned the ADRB for an upgrade of her discharge.  After careful review, the ADRB determined her discharge was improper since the wrong separation authority approved her discharge.  As a result, the ADRB upgraded her discharge from a general to an honorable discharge, changed the authority and reason for her separation, and changed her SPD to the correct corresponding code.  However, the ADRB elected not to change her RE code since the basis for her discharge did not change.

2.  There is no evidence of record and the applicant did not provide any evidence that would warrant changing her RE code to one other than an RE-4.  Although the ADRB determined that the wrong separation authority approved her discharge, it did not change the fact that she was processed for separation because of her abuse of illegal drugs.

3.  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)                                         AR20100011686



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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