IN THE CASE OF:	  

		BOARD DATE:	    5 May 2011

		DOCKET NUMBER:  AR20100023097 


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 upgrade of his general discharge to an honorable discharge and change of his reentry (RE) code.

2.  The applicant states:

	a.  the type of discharge and RE code he received are in error because he was once diagnosed with traumatic brain injury (TBI) and he started to take medication;

	b.  having been discharged he misses the order the Army provided and feels bare without any responsibility or structure; and

	c.  he made a mistake or two in the past; however, his mistakes made him a man both while on active duty and as a veteran.

3.  The applicant provides no evidentiary documents.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) on 20 January 2000.  He was trained in, awarded, and served in military occupational specialty (MOS) 13D (Field Artillery Automated Tactical Data System Specialist).

2.  The applicant's Enlisted Record Brief (ERB) shows, in Section III (Service Data), that he was promoted to the rank/grade of staff sergeant (SSG)/E-6 on
1 December 2004 and that this was the highest rank/grade he held while serving on active duty.  His record also shows he earned numerous personal and service awards throughout his service.

3.  The applicant record includes four DA Forms 4856 (Developmental Counseling Form) which show he was formally counseled on the dates indicated for the following infractions:

	a.  on 10 November 2005, for testing positive for illegal drugs/substances on a urinalysis;

	b.  on 6 January 2006, for misconduct - positive urinalysis results for THC (Tetrahydrocannabino);

	c.  on 15 February 2006, for insubordinate conduct towards a noncommissioned officer (NCO) and failing to obey a lawful order; and

	d.  on 16 February 2006, for failing to report.

4.  The applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following two occasions for the offense(s) indicated:

   a.  on 12 January 2006, in the rank/grade of SSG/E-6, for wrongfully using marijuana between 26 September 2005 and 26 October 2006; and

   b.  on 2 March 2006, in the rank/grade of sergeant (SGT)/E-5, for twice failing to go at the prescribed time to his appointed place of duty and for being disrespectful in language towards an NCO.

5.  His record contains a DA Form 3822-R (Report of Mental Status Evaluation) completed by a Clinical Psychologist, dated 24 January 2006.  It indicated the applicant underwent a mental status evaluation that showed his behavior and thought content were normal, that he was fully alert and oriented, that he had an unremarkable mood, that his thinking process was clear, and that his memory was good.  The examiner also determined the applicant was mentally responsible, he met retention requirements, and he had the mental capacity to understand and participate in separation proceedings.  The remarks section 

shows the entries "Axis I:  PTSD [post traumatic stress disorder], Mood Disorder, Polysubstance abuse" and "(applicant's name) is cleared for chapter 14."

6.  On 4 May 2006, the unit commander notified the applicant that he was initiating action to separate him under the provisions Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), paragraph 14-12c, for misconduct - commission of a serious offense, with an under other than honorable conditions discharge based on the following reasons:

	a.  for testing positive for marijuana (THC) on 23 and 26 October 2005 and
13 December 2005;

	b.  for failing to obey a direct order on 17 and 19 January 2006 and
15 February 2006;

	c.  for being disrespectful towards an NCO on 15 February 2006; and

	d.  for failing to go at the time prescribed to his appointed place of duty on 17 and 19 January 2006 and 16 February 2006.

7.  On 4 May 2006, the applicant consulted with legal counsel and he was advised of the basis for the contemplated separation action and its effects.  The applicant completed his election of rights waiving representation by counsel and electing to make a statement in his own behalf.  However, this statement is not included in the applicant's military record.

8.  On 16 May 2006, the separation authority, upon the recommendation of the applicant’s chain of command, approved the applicant's separation action under the provisions of Army Regulation 635-200, paragraph 14-12c, with issuance of an under other than honorable conditions discharge.  On 18 May 2006, the applicant was discharged accordingly.

9.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c(2), by reason of “Misconduct (Drug Abuse), with an under other than honorable conditions discharge.  He completed 6 years, 3 months, and 29 days of creditable active service.

10.  Item 26 (Separation Code) of his DD Form 214 shows the entry "JKK."  Item 27 (RE Code) shows the entry "4."

11.  On 7 May 2010, the Army Discharge Review Board (ADRB), after carefully examining the applicant's record of service, determined the characterization of the applicant's discharge was too harsh based on his length and quality of service, numerous awards, and combat service and as a result was inequitable.  Accordingly the ADRB voted to grant relief by upgrading his under other than honorable conditions discharge to a general discharge, with restoration of his rank/grade to specialist (SPC)/E-4.  However, the ADRB determined the reason and authority for his discharge was both proper and equitable and voted not to change it.

12.  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.  The regulation specifies that action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  An honorable or a general discharge may be awarded by the separation authority if warranted by the member's overall record of service; however, an under other than honorable conditions discharge is normally considered appropriate for members separated under these provisions.

13.  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.

14.  Army Regulation 635-5-1 (Separation 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 the SPD code JKK is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12c(2), 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.

15.  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 contends the characterization of his service should be upgraded to an honorable discharge because he was once diagnosed with TBI.  However, his record shows he underwent a mental status evaluation that confirmed he was mentally competent to understand and participate in separation proceedings and that he met medical retention standards, and there is no evidence to show he was not mentally competent at the time he committed his acts of misconduct.  Although his mental status evaluation indicated "PTSD," there is no evidence and the applicant did not provide any evidence of a TBI determination during his active duty service or that such a determination rendered him incapable of knowing right from wrong.

2.  The evidence of record also confirms the ADRB determined the applicant's under other than honorable conditions discharge was too harsh and voted to upgrade it to a general discharge.  However, the ADRB determined the reason and authority for his discharge was both proper and equitable and voted not to change it.

3.  The evidence of record confirms that the applicant accepted NJP on two separate occasions for acts of misconduct that included his failing to go at the time prescribed to his appointed place of duty, being disrespectful to an NCO, and wrongfully using marijuana.  By violating the Army's policy not to possess or use illegal drugs, he compromised the trust and confidence placed in him as a Soldier.  He had the duty to support and abide by the Army's drug policies.  By using illegal drugs, he knowingly risked a military career and clearly diminished the overall quality of his service below that meriting an honorable discharge.
4.  The evidence of record also confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

5.  Under the governing regulation, the SPD code of JKK and an RE-4 code are the proper codes to assign members separating under the provisions of Army Regulation 635-200, paragraph 14-12c(2), by reason of misconduct based on drug abuse.  As a result, the RE-4 code assigned to the applicant at the time of his discharge was and still is appropriate based on the authority and reason for his separation.  Absent any evidence of an error or injustice related to the assigned RE code, there is an insufficient evidentiary basis to support granting the 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)                                         AR20100023097



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ABCMR Record of Proceedings (cont)                                         AR20100023097



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