BOARD DATE:	  4 September 2012

		DOCKET NUMBER:  AR20120002269 


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, an upgrade of his general discharge and a change of his reentry (RE) code of "4."

2.  The applicant makes no additional statements.

3.  The applicant provides copies of:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* letter of support, dated 18 April 2006

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.  On 7 September 2005, the applicant enlisted in the Regular Army (RA) and he was subsequently assigned to Fort Benning, Georgia for initial training.

3.  On 23 January 2006, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for wrongful use of cocaine.

4.  On 8 February 2006, the applicant’s commander notified him of his intention to initiate action to separate him under the provisions of Army Regulation
635-200, paragraph 14-12c(2), for misconduct (serious offense), which was for abuse of illegal drugs - cocaine.

5.  On 8 February 2006, the applicant consulted with counsel concerning his rights.  He elected not to make a statement in his own behalf and indicated that he did not want counsel.  He stated that he wished to be separated as soon as possible.

6.  On 8 February 2006, the commander recommended the applicant's separation, citing the reason was misconduct - abuse of illegal drugs - cocaine.

7.  On 24 February 2006, the battalion commander recommended approval of the recommendation and requested a waiver of any rehabilitation because the applicant did not possess potential for further useful service.

8.  On 6 March 2006, the appropriate authority approved the recommendation for discharge and directed that the applicant be issued a general discharge.

9.  Accordingly, on 14 March 2006, the applicant was discharged under honorable conditions.  He had completed 6 months and 8 days of creditable active service.  He was discharged under Army Regulation 635-200, paragraph 14-12c, due to misconduct-commission of a serious offense, and assigned a separation program designator (SPD) code of "JKQ" and an RE code of "4."

10.  On 13 December 2006, the applicant was issued a DD Form 215 (Correction to DD Form 214) changing the separation authority to "paragraph 14-12(2), misconduct- drug abuse, with an SPD code of JKK"; his RE code remained unchanged.

11.  On 29 February 2008, the Army Discharge Review Board (ADRB) denied the applicant's request for an upgrade of his discharge.  The ADRB found that his discharge was proper and equitable.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include commission of a serious offense that could result in a punitive discharge.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

	b.  Paragraph 3-7a 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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

13.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) prescribes eligibility criteria, policies, and procedures for enlistment and processing into the RA and the Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment and includes a list of armed forces RE codes including RA RE codes.  An RE code of "4" applies to persons separated from their last period of service with a non-waivable disqualification.  

14.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities and reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. The SPD code of JKK was the appropriate code for the applicant based upon the guidance provided in Army Regulation 635-5-1 for Soldiers separating under the provisions of Army Regulation 635-200, paragraph 12c(2), misconduct - drug abuse.  Additionally, the SPD/RE Code Cross Reference Table establishes RE code of "4" as the proper RE code to assign to Soldiers for this reason.

15.  Under the Uniform Code of Military Justice, the maximum punishment allowed for the wrongful use of cocaine is a punitive discharge and confinement for 5 years.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general discharge should be upgraded to honorable and his RE code of "4" should be changed.

2.  The record shows the applicant received NJP for the wrongful use of cocaine.  This is clearly a serious offense.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

4.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

5.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

6.  The RE code of "4" establishing his ineligibility for enlistment/reenlistment was correctly entered on his separation document in accordance with governing regulations.  There is no evidence of an error or injustice.

7.  There is no apparent basis for removal or waiver of the applicant’s disqualification that established the basis for his assigned RE code of "4."

8.  In view of the above, the applicant's request should be denied.

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)                                         AR20120002269



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120002269



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1