IN THE CASE OF:	  

		BOARD DATE:	  5 January 2012

		DOCKET NUMBER:  AR20110012830 


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, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) in:

* Item 4a (Grade, Rank or Rate) specialist four (SP4)
* Item 4b (Pay Grade) E-4
* Item 27 (Reentry (RE) Code) the code of "3" or "2" 

2.  The applicant states the following:

   a.  He understands that the Army Regulation states service in a grade will not be considered to have been satisfactory when reversion to a lower grade was expressly for misconduct caused by punishment pursuant to Article 15, Uniform Code of Military Justice and therefore his service would not be considered satisfactory due to misconduct.  However, he believes his rank should be reviewed and changed accordingly.  His [reduction in rank] was based on one isolated incident and since then he has been involved in no further incidents.  He entered into a plea agreement, took responsibility for his actions, and served 30 days at Camp Lejeune, NC.  He was told he could not reenlist for 2 years, but he was not told he would be given an RE code of 4.
   
   b.  Although it is not an excuse, he was young and immature and since the incident he has matured and grown.  He believes his RE code is unjust considering he had no prior violations and he was not afforded the opportunity to seek counseling or therapy.  Seven Soldiers in his unit tested positive and instead of identifying a problem with the unit, they chose to ignore it.  He served his time and he was discharged.  He did not continue to use drugs as a civilian.  He wants his RE code changed as he wishes to have the opportunity to reenlist.
   
3.  The applicant provides two DD Forms 214 (Certificate of Release or Discharge from Active Duty), two letters, and five memoranda.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army on 15 July 2004 at age 18 and he held military occupational specialty 13B (Cannon Crewmember).  He was awarded the Army Commendation Medal, Afghanistan Campaign Medal, Global War on Terrorism Service Medal, Army Service Ribbon, Overseas Service Ribbon, and North Atlantic Treaty Organization Medal.  The highest rank/grade he held was SPC/E-4.

2.  On 16 January 2007, at Fort Bragg, NC, he participated in a command urinalysis and his urine tested positive for cocaine.

3.  On 8 February 2007, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with paragraph 
14-12c, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), due to misconduct - commission of a serious offense with the issuance of an under other than honorable conditions discharge.  Specifically, the commander cited the applicant's positive test for cocaine use on the 16 January 2007 urinalysis as the basis for the recommendation.

4.  On 8 February 2007, the applicant acknowledged receipt of the commander's intent to separate him.  He was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive, 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 acknowledged that 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.  

5.  On the same date, he waived his right to legal counsel, waived his right to an administrative separation board, and elected not to submit a statement in his own behalf.

6.  On 12 February 2007, his senior commander recommended approval of the discharge action with the issuance of an under other than honorable conditions discharge. 

7.  On 23 February 2007, the separation authority approved his discharge action under Army Regulation 635-200, paragraph 14-12c, with the issuance of an under other than honorable conditions discharge.  On 2 March 2007, he was discharged accordingly.

8.  The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, with an under other than honorable conditions characterization of service.  He completed 2 years, 7 months, and 3 days of creditable active service with 15 days of time lost.  His DD Form 214 shows the following entries in:

* Item 4a "PV1"
* Item 12i (Effective Date of Pay Grade) "2007  02  23"
* Item 25 (Separation Authority) "Army Regulation 635-200, paragraph
14-12c"
* Item 26 (Separation Code) "JKK"
* Item 27 "4"
* Item 28 (Narrative Reason for Separation) "Misconduct (Drug Abuse)"

9.  On 20 November 2009, the Army Discharge Review Board (ADRB) denied his request to change his RE code and approved his request for an upgrade of his characterization of service to "under honorable conditions."  His narrative reason for discharge was determined to be both proper and equitable and the ADRB voted not to change it. 

10.  His re-issued DD Form 214 shows he was discharged by reason of misconduct (drug abuse) in the rank/grade of PV1/E-1 on 2 March 2007 under the provisions of Army Regulation 635-200, paragraph 14-12c, with a character of service of under honorable conditions (general).  This DD Form 214 shows a separation program designator (SPD) code of "JKK" and an RE code of "4."

11.  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 include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, drug abuse, and convictions by civil authorities.  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.

12.  Army Regulation 635-5-1 (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 that SPD code JKK is the appropriate code to assign to Soldiers discharged for misconduct (drug abuse) under the provisions of Army Regulation 635-200, paragraph 14-12c.  The SPD/RE Code Cross Reference Table stipulates that an RE code of 4 will be assigned to members separated with an SPD code of JKK.

13.  Army Regulation 635-200, paragraph 1-13, states when a Soldier is to be discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted grade.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by his positive urinalysis for cocaine use.  Accordingly, his immediate commander initiated separation action against him.

2.  His separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  There is no evidence and he did not submit any evidence to show he was singled out, treated unfairly, or wrongfully discharged.  

3.  The evidence of record also shows when the ADRB upgraded the applicant's discharge that board determined his reason for discharge was proper and equitable and voted not to change it.  His assigned RE code of "4" and SPD code of JKK were based on his narrative reason for discharge.  This is the only RE code permitted with an SPD code JKK.

4.  He was discharged in the rank of PV1 under the provisions of Army Regulation 635-200, paragraph 14-12c, due to misconduct (drug abuse).  The appropriate entry was entered in the narrative reason for separation block of his DD Form 214 and his rank and pay grade are correctly entered on his DD Form 214.  


5.  If his reduction had actually been based upon his receiving a discharge under other than honorable conditions, it appears his DD Form 214 should have been corrected to show his rank and grade as SPC, E-4 when the ADRB upgraded his discharge.  However, the applicant indicates he might have been reduced through Article 15 action.  If that were the case, then his DD Form 214 would not have been corrected to show his rank and grade as SPC, E-4.  

6.  Because of the uncertainty as to how he was reduced (through Article 15 action or only as a result of his discharge under other than honorable conditions), there is insufficient evidence on which to change his rank and grade on his        DD Form 214.

7.  In view of the foregoing, he is not entitled to 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)                                         AR20110012830



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ABCMR Record of Proceedings (cont)                                         AR20110012830



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