IN THE CASE OF:	  

		BOARD DATE:  16 February 2012

		DOCKET NUMBER:  AR20110017091 


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 that his general discharge be upgraded to an honorable discharge and that his Reentry (RE) Code be changed to a more favorable code.

2.  The applicant states that he committed the offense of smoking marijuana because he was afraid of going back to Iraq due to the fear and depression he experienced on his first tour.  He continues by stating that he does not use drugs or alcohol.  He also states that he was tested twice at Fort Hood, Texas within 10 days; however, it takes 30 days to get marijuana out of your system.  He further states that he was not offered rehab of any kind and was told that he could get his discharge upgraded within 3 years; however, he has not been successful in doing so.

3.  The applicant provides a two-page letter explaining his application, a copy of his DD Form 214(Certificate of Release or Discharge from Active Duty) and a copy of his administrative discharge proceedings.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 18 February 2003 for a period of 3 years, training as a food service specialist and assignment to Europe.  He completed his training and was transferred to Germany on 18 July 2003.  He was advanced to the pay grade of E-4 on 18 February 2005 and departed Germany on 18 July 2005 for assignment to Fort Bliss, Texas.

2.  On 6 December 2005 the applicant was enrolled in the Army Substance Abuse Program (ASAP) and on 14 December 2005 nonjudicial punishment was imposed against him for the wrongful use of marijuana on or about 23 October 2005.

3.  On 22 November 2005 he tested positive for marijuana during a command directed urinalysis with a THC level of 39 PPM. 

4.  On 11 May 2006 the applicant’s commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, paragraph 14-12c. due to misconduct – abuse of illegal drugs.  He also indicated that the applicant was afforded full opportunity to utilize the service provided by the ASAP.  He recommended that the applicant receive a general discharge.

5.  The applicant acknowledged that he had been advised of his rights and declined the opportunity to consult with counsel. 

6.  The appropriate authority approved the recommendation for discharge and directed that he be furnished a General Discharge Certificate.

7.  Accordingly, he was discharged under honorable conditions on 24 May 2006 under the provisions of Army Regulation 635-200, paragraph 14-12c(2), due to misconduct – drug abuse.  He had served 3 years, 3 months and 7 days of active service and was issued a RE Code of “4”.

8.   The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge contending that  he desired to use the G.I. Bill benefits that he had earned.  The ADRB denied his request on 6 October 2009.  He again applied to the ADRB for an upgrade of his discharge and was granted a personal appearance before the ADRB traveling panel in Atlanta, Georgia on 21 April 2011.  On 2 May 2011 the ADRB voted unanimously to deny his request.

9.  Army Regulation 635-200, sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, and commission of a serious offense, which includes drug offenses.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  

10.  Paragraph 3-7a of Army Regulation 635-200 (Enlisted Personnel) 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

11.  Pertinent Army Regulations provide that prior to discharge or release from active duty individuals will be assigned RE codes, based on their service records or reason for discharge.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the USAR.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes, including RA RE codes.

12.  RE-4 indicates that a person is not qualified for continued Army service by virtue of being separated from the service with a nonwaivable disqualification.  The applicable regulations direct that an RE Code of 4 be issued for a SPD of “JKK”, which indicates separation for drug abuse.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  Accordingly, the characterization, the narrative reason for separation and the RE Code were appropriate for the circumstances of his case.
  
3.   The applicant’s contentions have been noted; however, they are not sufficiently mitigating when compared to the nature of his offense and his otherwise undistinguished record of service.  The applicant’s overall service simply does not rise to the level of a fully honorable discharge.

4.  Accordingly, there appears to be no basis to change his characterization of service or RE Code as he requests.



  

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)                                         AR20110017091





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ABCMR Record of Proceedings (cont)                                         AR20110017091



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