IN THE CASE OF:	  

		BOARD DATE:	  29 November 2011

		DOCKET NUMBER:  AR20110011031 


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 narrative reason for separation to read "Hardship" instead of "Misconduct."

2.  The applicant states he successfully appealed his discharge with the Army Discharge Review Board (ADRB) which upgraded his character of service from "Under Honorable Conditions (General)" to "Honorable."  He states he is currently receiving intensive treatment for multi-systemic therapy (MST) and concludes that making this change will greatly assist his receipt of treatment from the Department of Veterans Affairs (VA).

3.  The applicant provides his ADRB Case Report and Directive.

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 30 September 1999 and he held military occupational specialty 12B (Combat Engineer).  The highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3; however, at the time of his discharge he held the rank/pay grade of private (PVT)/E-1.

3.  His military service record reveals a disciplinary history that includes his acceptance of nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) on 28 June 2001 for wrongful use of Ecstasy between 5 April and 6 May 2001.

4.  On 10 July 2010, the applicant's unit commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for misconduct - commission of a serious offense, with a general discharge.  The commander cited the applicant's conviction for using a controlled substance as the basis for this action, advised him of his rights, and afforded him an opportunity to consult with legal counsel.

5.  On 10 July 2001, the applicant acknowledged receipt of the commander's intent to separate him.  The applicant's election of rights is not contained in the available record.

6.  Subsequent to this acknowledgement, the applicant's immediate commander initiated separation action against him in accordance with Army Regulation
635-200, paragraph 14-12c, for misconduct - commission of a serious offense.  The immediate commander recommended the applicant be issued a general discharge.  The applicant's discharge packet contains a copy of the results of a biochemical test that was part of the applicant's Army Substance Abuse Program (ASAP) treatment plan.

7.  On 10 July 2001, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, by reason of misconduct - commission of a serious offense, with a general discharge.  Accordingly, the applicant was discharged on 17 July 2001.

8.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c(2), by reason of misconduct, with a general discharge.  His DD Form 214 further shows he completed 1 year, 9 months, and 18 days of creditable active service.  Additionally, this form shows in:
* 
item 25 (Separation Authority), the entry "AR 635-200, PARA 14-12c(2)"
* item 26 (Separation Code),the entry "JKK"
* item 28 (Narrative Reason for Separation), entry "MISCONDUCT"

9.  The applicant submitted a DD Form 293 (Application for Review of Discharge from the Armed Forces of the United States) to the ADRB requesting upgrade of his general discharge to fully honorable and change of his narrative reason for separation.

10.  On 28 April 2011, after careful consideration of his military records and all other available evidence, the ADRB voted to grant partial relief in the form of an upgrade of his characterization of service to fully honorable.  The catalyst for granting the applicant an upgrade was based on the fact that his chain of command introduced information into the discharge proceedings in the form of the results of a biochemical test that was part of the applicant's ASAP treatment plan.  It was determined that the test results were limited use information as defined in Army Regulation 600-85 (The Army Substance Abuse Program) and use of this information mandated award of a fully honorable discharge.  However, the ADRB found that the "misconduct" reason for discharge was fully supported by the record and voted not to change it.

11.  As a result of the ADRB action, the applicant's original DD Form 214 was voided and he was issued a revised DD Form 214 with an Honorable Discharge Certificate.  His revised DD Form 214 shows in:

* item 18 (Remarks) the entry "SERVICE CHARACTERIZATION UPGRADED ON 20110428 FOLLOWING APPLICATION DATED 20110323"
* item 24 (Character of Service) the entry "HONORABLE"
* item 25 the entry AR 635-200, PARA 14-12c(2)
* item 26 the entry "JKK"
* item 28 the entry "MISCONDUCT"

12.  There is no evidence of record and the applicant did not provide any evidence that he had a situation that warranted consideration of a hardship discharge.  There is also no evidence he applied for a hardship discharge under the provisions of Army Regulation 635-200, chapter 6 (Separation Because of Dependency or Hardship).

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 term of service date.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.

14.  Army Regulation 635-200, chapter 6, paragraph 6-1 states that separation under this chapter is for the convenience of the Government.  Hardship exists when in circumstances not involving death or disability of a member of the Soldier’s (or spouse’s) immediate family, separation from the Service will materially affect the care or support of the family by alleviating undue and genuine hardship.

15.  Army Regulation 635-5-1 (Separation Program Designator (SPD Codes)), in effect at the time of the applicant's separation, provided 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 stated, in pertinent part, that the SPD code of JKK was the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12c(2), for Misconduct (Drug Abuse).

DISCUSSION AND CONCLUSIONS:

1.  The applicant committed a serious offense by wrongfully using Ecstasy.  Accordingly, his chain of command initiated separation action against him under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for misconduct for using illegal drugs.  With the exception of including the results of a urinalysis conducted as part of his participation in ASAP, all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

2.  The ADRB noted the use of the ASAP urinalysis was in contradiction of the Limited Use Policy and upgraded his characterization of service accordingly.  However, the ADRB also noted that this does not change the fact that separation action was appropriately initiated against the applicant for substance abuse.  

3.  His narrative reason for separation was assigned based on his discharge under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c due to misconduct for commission of a serious offense.  The underlying reason for his discharge was his serious offenses.  The only valid narrative reason for separation permitted under that paragraph is "Misconduct" and the appropriate SPD code associated with this discharge is "JKK" which are correctly shown on his DD Form 214.
4.  The applicant's contention that his narrative reason for separation should be changed to hardship was also considered.  However, there is no evidence he applied for a hardship discharge or that he was discharged under any criteria warranting a hardship discharge.

5.  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)                                         AR20110011031



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ABCMR Record of Proceedings (cont)                                         AR20110011031



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