IN THE CASE OF:	  

		BOARD DATE:	  14 June 2012

		DOCKET NUMBER:  AR20110023869 


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 reconsideration of his earlier request for correction of item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to read "hardship" instead of "misconduct."

2.  As new issues, he also requests:

* payment of 28.5 days of accrued leave
* reimbursement of the money he paid into the Montgomery GI Bill (MGIB) Program
* correction of his DD Form 214 to show his rank/grade as private first class (PFC)/E-3
* entitlement to a dental examination

3.  The applicant states he was unaware of these errors until they were brought up to his attention by a service officer for the Military Order of the Purple Heart.

4.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110011031 on 29 November 2011.

2.  The applicant did not provide any new evidence; however, he provides a new argument which was not previously reviewed by the ABCMR.  Therefore, it, in itself, is new evidence and as such warrant consideration by the Board.

3.  The applicant enlisted in the U.S. Army Reserve under the Delayed Entry Program (DEP) on 23 September 1999.  He completed a DD Form 2366 (Montgomery GI Bill Act of 1984 (MGIB)) wherein he indicated he understood the below statement and authenticated this form with his signature:

I understand that UNLESS I DISENROLL from the MGIB, my basic pay will be reduced $100.00 per month or the current monthly rate for EACH of the first 12 full months of active duty and this basic pay reduction CANNOT be REFUNDED, SUSPENDED, OR STOPPED.

4.  He was discharged from the DEP on 29 September 1999 for the purpose of immediate enlistment in the Regular Army.  He enlisted in the Regular Army on 30 September 1999.  He again completed a DD Form 2366 on 7 October 1999 and acknowledged the same statement as above.

5.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 12B (Combat Engineer).  He was promoted to private/E-2 on 30 March 2000 and to PFC/E-3 on 30 September 2000.

6.  On 28 June 2001, he accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice for wrongfully using Ecstasy (methylenedioxymethamphetamine) between 5 April and 6 May 2001.  His punishment consisted, in part, of reduction to private (PVT)/E-1.

7.  On 10 July 2001, his immediate commander notified him of his intent to initiate separation action against him for misconduct – commission of a serious offense – under the provisions of Army Regulation 635-200, paragraph 14-12c, with a general discharge.

8.  On 10 July 2001, the applicant acknowledged receipt of the commander's intent to separate him.  He was notified of his right to consult with legal counsel and was advised of 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 the procedures/rights available to him.  

9.  Subsequent to this acknowledgement, the applicant's 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 issuance of a general discharge.  The applicant's discharge packet contains a copy of the results of a biochemical test that was part of the applicant's Army Substance Abuse Program (ASAP) treatment plan.

10.  On 10 July 2001, his intermediate commander recommended approval of the discharge with the issuance of a general under honorable conditions character of service.

11.  Also on 10 July 2001 and consistent with the chain of command's recommendations, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct – commission of a serious offense, with a general under honorable conditions character of service.  Accordingly, the applicant was discharged on 17 July 2001.

12.  His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c(2), by reason of misconduct with a general under honorable conditions character of service.  His DD Form 214 further shows he completed 1 year, 9 months, and 18 days of creditable active service.  Additionally, this form shows in:

* item 16 (Days Accrued Leave Paid) – "28.5"
* item 17 (Member Was Provided Complete Dental Examination and All Appropriate Dental Services and Treatment within 90 Days Prior to Separation) – marked with an "X" in the "NO" block
* item 24 (Character of Service) – "UNDER HONORABLE CONDITIONS (GENERAL)"
* item 25 (Separation Authority) – "AR 635-200, PARA 14-12C(2)"
* item 26 (Separation Code) – "JKK"
* item 28 (Narrative Reason for Separation) – "MISCONDUCT"

13.  On 28 April 2011, the Army Discharge Review Board (ADRB) voted to grant partial relief in the form of an upgrade of his character of service to fully honorable.  The upgrade was based on the fact that his chain of command introduced information into the discharge proceedings in the form of the results of a biochemical test that was part of the applicant's ASAP treatment plan.  The ADRB determined that the test results were limited-use information as defined in Army Regulation 600-85 (The ASAP) and use of this information mandated award of a fully honorable discharge.  However, the ADRB found that the "misconduct" reason for discharge was fully supported by the record and voted not to change it.

14.  As a result of the ADRB action, the applicant's original DD Form 214 was voided and he was issued a revised DD Form 214 and an Honorable Discharge Certificate.  His revised DD Form 214 shows in:

* item 16 – "28.5"
* item 17 – marked with an "X" in the "NO" block
* item 18 (Remarks) – added the entry, "SERVICE CHARACTERIZATION UPGRADED ON 20110428 FOLLOWING APPLICATION DATED 20110323"
* item 24 – "HONORABLE"
* item 25 – "AR 635-200, PARA 14-12C(2)"
* item 26 – "JKK"
* item 28 – "MISCONDUCT"

15.  The applicant's dental records are not available for review with this case.

16.  The applicant did not provide his final pay settlement or evidence of his non-receipt of pay for accrued leave.  Additionally, there is no indication he contacted the Defense Finance and Accounting Service regarding non-receipt of pay.

17.  There is no evidence of record and the applicant did not provide any evidence to show he had a situation that warranted consideration of a hardship discharge.  There is also no evidence he applied for a hardship discharge under the provisions of Army Regulation 635-200, chapter 6 (Separation Because of Dependency or Hardship).

18.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 provides for the separation for various types of misconduct, which include drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service date.  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 considered 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.

19.  Army Regulation 635-200 provides for the separation of enlisted Soldiers.

	a.  Paragraph 6-3 states that Soldiers on active duty may be discharged or released because of genuine dependency or hardship.  Hardship exists when in circumstances not involving death or disability of a member of the Soldier's (or spouse's) immediate family, separation from the Service will materially affect the care or support of the family by alleviating undue and genuine hardship.  Soldiers will not be separated because of dependency or hardship until proper disposition is made of the case if they are under charges, in confinement, or being processed for involuntary separation under this regulation.

	b.  Paragraph 6-4 states separation from the service of Soldiers because of dependency/hardship will be granted when all the following circumstances exist:  conditions have arisen or have been aggravated to an excessive degree since entry on active duty, conditions are not of a temporary nature, every reasonable effort has been made by the Soldier to alleviate the dependency or hardship conditions without success, and separation from active military service of the Soldier is the only readily available means of eliminating or materially alleviating the dependency or hardship conditions.

	c.  Paragraph 6-6 (Application for Separation) states the Soldier must request separation from the service because of dependency or hardship in writing.  Supporting evidence must be provided.

20.  Army Regulation 635-5-1 (Separation Program Designator (SPD Codes)), in effect at the time of the applicant's separation, provided 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 stated the SPD code of "JKK" was the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12c(2), for misconduct (drug abuse).

21.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  It is important that information entered on the form should be complete and accurate. 
Chapter 2 contains guidance on the preparation of the DD Form 214.  It states that item 17 is applicable only to Soldiers who have completed 180 days or more of continuous active duty (check the Standard Form 603 (Health Record-Dental) for validity of exam and all appropriate treatment).  

22.  The Department of Veterans Affairs booklet, Federal Benefits for Veterans, states recently-discharged veterans with a service-connected noncompensable dental condition who served on active duty 90 days or more and who apply for VA dental care within 180 days of separation from active duty may receive one time treatment for dental conditions if the dental condition is shown to have 

existed at the time of separation and the veteran’s certificate of discharge does not indicate that the veteran received necessary dental care within a 90-day period prior to separation.

DISCUSSION AND CONCLUSIONS:

1.  With respect to the narrative reason for separation:

	a.  The applicant committed a serious offense by wrongfully taking Ecstasy.  Accordingly, his chain of command initiated separation action against him under the provisions of chapter 14 of Army Regulation 635-200 for misconduct for using illegal drugs.  With the exception of including the results of a urinalysis conducted as part of his participation in ASAP, all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

	b.  The ADRB noted the use of the ASAP urinalysis was in contradiction to the limited-use policy and upgraded his characterization of service accordingly.  However, the ADRB also noted that this does not change the fact that separation action was appropriately initiated against the applicant for substance abuse.

	c.  His narrative reason for separation was assigned based on his discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, due to misconduct for commission of a serious offense.  Absent the misconduct, there was no fundamental reason to process him for discharge.  The underlying reason for his discharge was his serious offense.  The only valid narrative reason for separation permitted under that paragraph is "misconduct" and the appropriate SPD code associated with this discharge is "JKK" which are correctly shown on his DD Form 214.

	d.  There is no evidence to show the applicant experienced a family or financial hardship or that he addressed such hardship with his chain of command or other support channels or that he applied for a discharge by reason of hardship.

2.  With respect to his rank/grade, the evidence of record shows the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on 28 June 2001.  His punishment included a reduction 

to the lowest enlisted grade.  He held this rank/grade at the time of his discharge. 
His PVT/E-1 rank/grade is properly shown on his DD Form 214 and there is no reason to change it.

3.  With respect to his unpaid leave, there is no evidence in the available records and he provides none to show he was not properly compensated for his accrued leave.  In the absence of evidence to the contrary, it must be presumed he was properly paid for his leave.

4.  With respect to reimbursement of MGIB deductions, as the applicant acknowledged upon his enlistment in the DEP and later in the Regular Army, unless he elected to disenroll from the MGIB, the $100.00 reduction for each of the first 12 months of active duty cannot be refunded, suspended, or stopped.  There is no indication that his enlistment contract is incorrect or that he was not counseled properly regarding the MGIB.

5.  With respect to the dental examination, his DD Form 214 shows he was not provided with a dental examination within 90 days of his separation.  Had he needed dental care, that would have entitled him to seek such treatment from the VA within 180 days of his separation.  He is not entitled to dental care from the Army, and this is not a records correction within the purview of this Board, but he may seek assistance from the VA to see if he could still be entitled to the care he seeks.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X___  ____X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  With regard to the narrative reason for separation, the evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20110011031, dated 29 November 2011.

2.  With regard to the new issues, the evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined 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)                                         AR20110023869



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ABCMR Record of Proceedings (cont)                                         AR20110023869



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