BOARD DATE:	  22 May 2012

		DOCKET NUMBER:  AR20110022218 


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

2.  The applicant states that after redeploying from Iraq he was mourning the loss of his wife and screwed up.  He would like a chance to serve again and believes he can still contribute to today’s military.  He further states he has been through a drug rehabilitation program and continues to attend therapy for post-traumatic stress disorder, generalized anxiety and mood disorder.  He has successfully maintained sobriety for 1 year, has a stable residence, and is in a work program at the Dallas Department of Veterans Affairs (VA) Medical Center.  He would like to reenter military service, but if unable to, he would like his discharge upgraded to honorable so he can use the Post-9/11 GI Bill to attend school.

3.  The applicant provides a self-authored statement.

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 requested upgrade of his discharge so he can reenter the military and serve his country.  The applicant's discharge issue is being considered by the Army Discharge Review Board (ADRB) since he is within that board's 15-year statute of limitations.  Therefore, this portion of the applicant's request will not be discussed further in these Proceedings.

3.  The applicant enlisted in the Regular Army on 21 February 2003.  He completed training and he was awarded military occupational specialty 15Y
(AH-64D Armament/Electrical/Avionics Repairer).  The highest rank/grade he attained while on active duty was specialist (SPC)/E-4.  However, he held the rank/grade of private (PV1)/E-1 at the time of his separation.

3.  On 29 March 2007, he participated in a unit urinalysis and his urine sample tested positive for cocaine.

4.  On 16 April 2007, the applicant was notified of the command's consideration of whether he should receive nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for wrongfully using cocaine between 22 and 29 March 2007.  He was advised of his right to consult with counsel, to request a person to speak on his behalf, and to present witnesses or other matters of extenuation and mitigation.  He was also advised of his right to demand trial by court-martial instead.  He was given 48 hours to respond.

5.  On 17 April 2007, the applicant's immediate commander notified him of his intent to initiate separation action in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12c, by reason of misconduct - commission of a serious offense.  Specifically, he cited the applicant's wrongful use of cocaine.  He advised the applicant he was recommending he receive a general, under honorable conditions discharge.  The applicant acknowledged receipt of the intended separation action on the same day.

6.  On 19 April 2007, the applicant accepted NJP under the provisions of
Article 15, UCMJ for wrongfully using cocaine.  He did not present any matters in defense, mitigation, and/or extenuation.  His punishment included reduction to private (PV1)/E-1.

7.  On 1 May 2007, having been advised by counsel, he acknowledged the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He waived consideration of his case and personal appearance before an administrative separation board.  He also elected not to submit a statement in his own behalf. 

8.  He further indicated he understood he could expect to encounter substantial prejudice in civilian life if a general, under honorable conditions 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.

9.  On 1 May 2007, his 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 a general discharge.

9.  On 1 May 2007, his intermediate commander recommended approval of his discharge with a general discharge. 

10.  On 3 May 2007, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, with a general discharge.

11.  On 23 May 2007, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows he was discharged in accordance with Army Regulation 635-200, paragraph 14-12c(2), by reason of misconduct (drug abuse), with a general discharge.  He completed 4 years, 3 months, and 3 days of creditable active service.  Additionally, item 26 (Separation Code) shows the entry "JKK" and item 27 (RE Code) shows the entry "4."

12.  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 included minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  Army policy states that an under other than honorable conditions discharge is normally considered appropriate for a Soldier discharged for patterns of misconduct; however, the discharge authority may direct an honorable or general discharge if such are merited by the Soldier's overall record.

13.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve.  It 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.  Table 3-1 included a list of the Regular Army 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 not considered fully qualified for reentry or continuous services at time of separation, and the disqualification is not waivable.

14.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that the SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The "JKK" SPD code is the correct code for Soldiers separating under Army Regulation 635-200, chapter 14-12c(2) by reason of misconduct (drug abuse).

15.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  This cross reference table shows the SPD code and a corresponding RE code.  The table in effect at the time of his discharge shows the SPD code of "JKK" has a corresponding RE code of "4."

DISCUSSION AND CONCLUSIONS:
1.  The evidence of record shows the applicant tested positive for wrongfully using illegal drugs.  As a result, his chain of command initiated separation action against him.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.


2.  The evidence of record confirms the applicant's SPD and RE codes were properly assigned based on his discharge under the provisions of Army Regulation 635-200, paragraph 14-12c(2) due to his illegal use of drugs.  The only valid narrative reason for separation permitted under that paragraph is "misconduct (drug abuse)."

3.  The appropriate SPD code associated with this type of discharge is "JKK" and the corresponding RE code with this discharge is RE-4, both of which are correctly shown on his DD Form 214.

4.  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)                                         AR20110022218



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ABCMR Record of Proceedings (cont)                                         AR20110022218



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