IN THE CASE OF:	  

		BOARD DATE:	  3 March 2011

		DOCKET NUMBER:  AR20100021517 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) by:

* Adding the Army Commendation Medal
* Adding the Force XXI Battle Command Brigade and Below (FBCB2) training course, Fuel Handler's Certification, and Hazardous Material Certification
* Upgrading his reentry (RE) code from 4 to 1 or 2

2.  The applicant states he was awarded the Army Commendation Medal and he completed the above training courses but his DD Form 214 does not show them. He adds that his discharge was not warranted because there was a discrepancy with his urinalysis.  His service after his misconduct in January 2005 was exemplary and without any incident.  He should be afforded a second chance to serve his country.

3.  The applicant provides:

* Statement in Support of a Claim
* FBCB2 Operator Course certificate of training
* Fuel Handler certificate of qualification
* Separation packet
* DA Form 638 (Recommendation for Award) and certificate for award of the Army Commendation Medal

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant's records as indicated on his application.

2.  Counsel states the applicant's request should be given prompt attention.

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 5 years on 8 July 2002 and he held military occupational specialty 92F (Petroleum Supply Specialist).  

3.  His records show he served in Kuwait/Iraq from 31 March 2003 to 30 March 2004.  He was assigned to the 404th Aviation Support Battalion and attained the rank/grade of specialist/E-4.

4.  On 20 July 2004, at Fort Hood, TX, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for wrongfully using marijuana between on or about 4 April 2004 and 3 May 2004.  

5.  On 6 January 2005, also at Fort Hood, TX, he participated in a command urinalysis and his urine sample tested positive for marijuana.  

6.  On 2 February 2005, he was investigated by the U.S. Army Criminal Investigation Command, also known as the CID.  The CID investigation established probable cause to believe he and another Soldier committed the offense of wrongful use of marijuana when they tested positive during a 100% unit urinalysis on 6 January 2005.

7.  On 24 March 2005, his immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 
635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12c, by reason of misconduct - commission of a serious offense (abuse of illegal drugs).  Specifically, he cited the applicant's use of marijuana and recommended that he be issued a general discharge.

8.  On 24 March 2005, the applicant acknowledged receipt of the commander's separation notification.  He subsequently consulted with legal counsel and he was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He further elected not to submit a statement in his own behalf.

9.  He further indicated he understood he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him and that he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge.

10.  On 24 March 2005, by memorandum to the applicant's chain of command, his legal counsel requested reconsideration of the chapter action by withdrawing or delaying the action pending laboratory retesting of the applicant's urine sample.  His counsel added that he received a memorandum from the Tripler Army Medical Center that indicated a fatal discrepancy existed during laboratory testing of the batch of urine samples that included the applicant's sample. 

11.  Subsequent to the applicant's acknowledgement and consult with counsel, his immediate commander initiated separation action against him in accordance with chapter 14 of Army Regulation 635-200, for misconduct - commission of a serious offense.  The immediate commander recommended that the applicant be issued a general discharge.

12.  On 25 April 2005, the applicant's intermediate commander recommended approval with the issuance of a general discharge.

13.  On 28 April 2005, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct - commission of a serious offense and directed his service be characterized as general, under honorable conditions.  Accordingly, the applicant was discharged on 11 May 2005.  
14.  The DD Form 214 he was issued confirms he was discharged under the provisions of paragraph 14-12c of Army Regulation 635-200 with a character of service of under honorable conditions by reason of misconduct - commission of a serious offense.  This form further confirms he completed 2 years, 10 months, and 4 days of creditable active service.  This form shows the following entries in:

	a.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) the Army Lapel Button, Global War on Terrorism Expeditionary Medal, National Defense Service Medal, the Global War on Terrorism Service Medal, and the Army Service Ribbon.

	b.  Item 14 (Military Education) the Petroleum Supply Specialist Course,
9 weeks, November 2002.

	c.  Item 26 (Separation Code) the entry "JKK."

	d.  Item 27 (Reentry Code) "4."

15.  He submitted:

	a.  A self-authored statement, dated 4 August 2010, wherein he indicated that there was a discrepancy regarding the urine samples.  His service, combat experience, and awards should be considered and he should be allowed to reenter the military.  He does not dispute that he smoked pot but he does not think it warranted a general discharge. 

	b.  DA Form 638 and certificate, awarding him the Army Commendation Medal for meritorious achievement from 31 March 2003 to 1 December 2003, by Permanent Orders Number 036-06, issued by Headquarters, 4th Brigade, 4th Infantry, Fort Hood, TX, on 5 February 2004.

	c.  Certificate of training, dated 10 February 2003, showing completion of the 40-hour FBCB2 Operator Course.

	d.  Certificate of Qualification that shows he was certified as a fuel handler and his certificate expired on 27 March 2005.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  Army policy states that an under other than honorable conditions discharge is normally considered appropriate for a Soldier discharged for patterns of misconduct; however, the discharge authority may direct an honorable or general discharge if such are merited by the Soldier's overall record.

17.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve.  It 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.  Table 3-1 included a list of the Regular Army 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; and

	c.  RE-4 applies to Soldiers separated from last period of service with a nonwaivable disqualification

18.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that the SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The "JKK" SPD code is the correct code for Soldiers separating under chapter 14-12c of Army Regulation 635-200 by reason of misconduct - commission of a serious offense (abuse of illegal drugs).

19.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  This cross reference table shows the SPD code and a corresponding RE code.  The table in effect at the time of his discharge shows the SPD code of "JKK" has a corresponding RE code of "4."

20.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  Chapter 2 of 

Army Regulation 635-5 contains guidance on the preparation of the DD Form 214.  Item 14 shows the Soldier's military education and is obtained from the Enlisted/Officer Record Brief.  It shows the formal in-service (full-time attendance) training courses successfully completed during the period of service covered by the DD Form 214 and includes title, length in weeks, and year completed.  This information is to assist the Soldier in job placement and counseling; therefore, training courses for combat skills are not listed.

DISCUSSION AND CONCLUSIONS:

1.  Permanent orders awarded him the Army Commendation Medal which is not shown on his DD Form 214; therefore, he is entitled to correction of his DD Form 214 to show this award.

2.  With respect to the FBCB2 training course, the evidence of record shows he completed the 1-week FBCB2 Operators Training course in 2003 and this course is not shown on this DD Form 214; therefore, he is entitled to correction of this DD Form 214 to show this course.

3.  With respect to his Hazardous Material and Fuel Handler certification, there is no provision to list certifications on the DD Form 214.  

4.  With respect to his RE-code, the evidence of record confirms his RE code was assigned based on the fact that he was discharged under the provisions of chapter 14 of Army Regulation 635-200 due to his misconduct - abuse of illegal drugs.  Absent the drug abuse, there was no fundamental reason to process him for discharge.  The underlying reason for his discharge was his drug abuse.  The only valid narrative reason for separation permitted under that paragraph is "misconduct - drug abuse" and the appropriate RE code associated with this discharge an RE-4 which is correctly shown on his DD Form 214.

5.  Even if there was a discrepancy with his urinalysis, he admitted to smoking pot.

6.  His desire to join the Army to serve his country is noted.  However, 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 enlist, 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.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ____X____  __X______  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding in:

* item 13 of his DD Form 214 the Army Commendation Medal
* item 14 of his DD Form 214 "FBCB2 Training, 1 week, 2003"

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to:

* Fuel Handler and Hazardous Material Certification Course
* RE Code



      _______ _   _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)                                         AR20100021517



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ABCMR Record of Proceedings (cont)                                         AR20100021517



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