IN THE CASE OF:	   

		BOARD DATE:	  9 October 2012

		DOCKET NUMBER:  AR20120005292 


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 amendment of his separation code and his narrative reason for separation.

2.  The applicant states he worked as an undercover member of the Drug Suppression Task Force and he was exposed to marijuana in the line of duty.

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and his firearms authorization.

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 8 April 1988, the applicant enlisted in the Regular Army for 4 years in pay grade E-1.  He completed training as a military policeman.  He was advanced through the ranks to specialist four/E-4.

3.  On 24 August 1990, the applicant accepted nonjudicial punishment (NJP) for wrongful use of marijuana.

4.  The applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c(2), for misconduct – abuse of illegal drugs.  His commander cited the applicant's knowing and wrongful use of some amount of marijuana as determined by a urinalysis as the basis for his recommendation.

5.  The applicant acknowledged receipt of the notification.  After consulting with counsel, he waived his right to counsel and elected to submit a statement in his own behalf.  He stated:

* he was a member of the Washington District Drug Suppression Team
* there was a great deal of trust placed in him when he received the job
* for 9 months he investigated various subjects and participated in numerous operations with excellent results and no discrepancies
* he was on orders for a permanent change of station to Johnston Island with attendance at the the Military Police Investigator School en route
* he had out-processed and cleared the installation when the rug was pulled out from under his feet
* all orders to Johnston Island had been cancelled due to overstrength conditions and he lost his school date
* the combination of negatives in his life led him to depression and solitude
* he has placed back at the beginning, standing in the gates
* he was given information on possible drug offenders in the area by an unwitting source who had no idea he was a military police officer
* he made the biggest mistake of his life when he smoked marijuana with his source
* looking back, he could see how he was trying to live above his duties and restrictions
* he committed an unforgivable offense and an inexcusable lapse in rational thinking, but he hoped that his one mistake would not haunt him for the rest of his life
* he requested to receive an honorable discharge

6.  On 16 November 1980, the appropriate authority approved the recommendation for discharge and directed the issuance of a General Discharge Certificate.

7.  On 30 November 1990, the applicant was discharged under honorable conditions (general) under the provisions of Army Regulation 635-200, chapter 14, for misconduct – abuse of illegal drugs.  His DD Form 214 shows he completed 2 years, 7 months, and 23 days of net active service.  He was assigned separation program designator (SPD) code JKK (misconduct – drug abuse).

8.  On 23 August 1993, the Army Discharge Review Board denied the applicant's petition for an upgrade of his discharge and a change to his narrative reason for separation.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 deals with 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.  A discharge under other than honorable conditions is normally 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.

10.  Army Regulation 635-5-1 (SPD Codes) prescribes the specific authorities (regulatory, statutory, or other directives) and reasons for the separation of members from active military service and the SPD codes to be used for these stated reasons.  The SPD code JKK applies to individuals discharged for misconduct – drug abuse.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted and his supporting evidence has been considered.

2.  His records show he was discharged for misconduct – abuse of illegal drugs.  He has not shown error or injustice in his narrative reason for separation or the SPD he was assigned.  He was assigned SPD code JKK which coincides with his narrative reason for separation.

3.  The fact that he was a member of the Drug Suppression Task Force and was exposed to marijuana in the line of duty is an insufficient justification for changing his narrative reason for separation and his SPD code.

4.  In view of the foregoing, 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 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)                                         AR20120005292



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ABCMR Record of Proceedings (cont)                                         AR20120005292



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