IN THE CASE OF:	  

		BOARD DATE:	  5 April 2012

		DOCKET NUMBER:  AR20110021079 


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 his separation code and reentry (RE) code be changed on his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states:

* He believes at the time of his misconduct there was an error in the drug test
* Some chemicals from food give a false reading
* He does not use marijuana and would be willing to take a drug test to prove it
* He was never offered a drug rehabilitation program, he was forced out quickly
* He was told he would be eligible for service 3 years after his separation
* He is a personal trainer 
* He wants to serve his country again
* He is bigger, faster, and stronger than anyone he knows
* He was a kid when he was in the Army
* He would be a great asset to the Army and is willing to do whatever to prove it

3.  The applicant provides no documentary evidence.



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 was born on 27 November 1984.  He enlisted in the Regular Army on 27 October 2005 for a period of 5 years.  He completed training and was awarded military occupational specialty 11B (infantryman).  

3.  A DA Form 2823 (Sworn Statement), dated 4 January 2007, states:

* Question:  "Did you use marijuana?"
* Answer:  "I'd like not to answer that question, sir."

4.  On 18 January 2007, nonjudicial punishment (NJP) was imposed against the applicant for being absent without leave (AWOL) from 19 December 2006 to 
4 January 2007 and using marijuana between 30 September 2006 and 
30 October 2006.

5.  On 6 February 2007, he was notified of his pending separation action under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph
14-12c, for misconduct (commission of a serious offense).  The unit commander cited his marijuana use and AWOL period as the basis for this action.

6.  On 8 February 2007, he consulted with counsel and acknowledged that he might encounter substantial prejudice in civilian life if he was issued a general discharge.  He also elected not to submit a statement on his own behalf.  

7.  On 23 February 2007, the separation authority approved the recommendation for discharge and directed the issuance of a general discharge.



8.  He was discharged under honorable conditions on 14 March 2007 under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct (abuse of illegal drugs).  He completed a total of 1 year, 4 months, and 3 days of creditable active service.  

9.  Item 25 (Separation Authority) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the entry "AR [Army Regulation] 635-200, PARA [paragraph] 14-12C(2)."  Item 26 (Separation Code) of his DD Form 214 shows the entry "JKK."  Item 28 (Narrative Reason for Separation) of his DD Form 214 shows the entry "MISCONDUCT (DRUG ABUSE)."

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense.  The regulation states that abuse of illegal drugs is serious misconduct.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.

11.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD's to be used for these stated reasons.  The regulation states the reason for discharge based on SPD code JKK is misconduct and the regulatory authority is Army Regulation 635-200, paragraph 14-12c(2).

12.  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 the reason for discharge.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment processing into the Regular Army, U.S. Army Reserve, and Army National Guard.  Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment.  That chapter includes a list of armed forces RE codes.

* RE-1 applies to persons completing an initial term of active service who were fully qualified when last separated
* RE-3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable
* RE-4 applies to persons separated from their last period of service with a non-waivable disqualification.  

13.  The SPD/RE Code Cross Reference Table, dated 15 June 2006, shows that Soldiers assigned an SPD code of JKK will be assigned an RE code of 4.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends there was an error in the drug test.  However, there is no evidence of record and he provided no evidence to support this contention.

2.  He contends he does not use marijuana and he was not offered a drug rehabilitation program.  However, evidence shows he had a positive urinalysis for marijuana use in 2006.  It is also noted he elected not to respond to the question "Did you use marijuana?" in his sworn statement in January 2007.

3.  He contends he was just a kid when he was in the Army.  However, age is not a sufficiently mitigating factor.  The applicant was almost 21 years old when he enlisted and successfully completed training.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military term of service.
 
4.  His separation code and RE code were administratively correct and in conformance with applicable regulations at the time of discharge.  Therefore, there is no basis for granting the applicant's request to amend these items on his DD Form 214.  

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)                                         AR20110021079



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ABCMR Record of Proceedings (cont)                                         AR20110021079



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