BOARD DATE:	  29 March 2012

		DOCKET NUMBER:  AR20110017154 


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 narrative reason for separation.

2.  The applicant states it was a one- time incident and he felt that he was short changed due to the fact that he had very few days left until his contract ended.

3.  The applicant does not provide any additional documents.

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, in pay grade E-1, on 15 May 1991, for a period of 3 years.  He completed training and he was awarded military occupational specialty 94B (Food Service Specialist).  The highest rank/grade he attained while serving on active duty was private (PV2)/E-2.

3.  The complete facts and circumstances surrounding his discharge are not available for review with this case.  However, his DD Form 214 shows he was discharged from active duty in pay grade E-1 on 15 May 1991 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, paragraph 14-12c for misconduct–abuse of illegal drugs, with a separation code of JKK. His service was characterized as under honorable condition (general).  He completed 1year, 10 months, and 4 days of creditable active service.

4.  There is no evidence he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

5.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.

6.  Paragraph 14-12c(2) of this regulation also provided for the separation of Soldiers for commission of a serious offense, such as the abuse of illegal drugs.  It provided that individuals identified as first time drug abusers, grades E-5 through E-9, would be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 could also be processed after a first drug offense and must be processed for separation after a second offense.  The issuance of an under other than honorable conditions discharge was normally considered appropriate.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.

7.  Army Regulation 635-200, paragraph 3-7a, further provided that an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate.

8.  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 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been considered; however, they do not support an upgrade of his general discharge or a change to his narrative reason for separation.

2.  The applicant's record is void of the specific facts and circumstances surrounding his discharge.  The applicant is presumed to have been properly notified by his commander that he was initiating action to separate him under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c for misconduct - abuse of illegal drugs.  It is also presumed the applicant’s commander advised him of his rights and that he was recommending he receive a general discharge.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  The applicant has not shown error, injustice, or inequity for the relief he now requests.  Therefore, in the absence of evidence showing otherwise, it must be presumed his discharge accurately reflects his overall record of service.

3.  Additionally, the applicant was assigned the SPD code of JKK as indicated on his DD Form 214.  In accordance with the applicable regulations and based on the authority for his separation, his narrative reason for separation correctly reflects "misconduct – abuse of illegal drugs."

4.  In view of the foregoing, there is an insufficient evidentiary 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)                                         AR20110017154



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ABCMR Record of Proceedings (cont)                                         AR20110017154



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