IN THE CASE OF:	  

		BOARD DATE:  18 October 2012

		DOCKET NUMBER:  AR20120006444 


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, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to upgrade his general under honorable conditions character of service to honorable and change his narrative reason for separation to something more favorable.

2.  The applicant states he was never given the opportunity for rehabilitation, he was simply discharged.  He made a mistake and takes responsibility for his actions; however, he does not want his entire life to be judged by one stupid mistake which could have been resolved if he had received counseling.  He was never a drug addict, just young and stupid.  After 17 years, he feels he has paid his debt.  He has changed his life for the better.  He is a responsible father of four and an upstanding member of society.  He would like to give back to his community by becoming a police officer; however, he will be unable to do so unless the Board grants his request.

3.  The applicant provides no additional 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 enlisted in the Regular Army on 17 April 1990 and held military occupational specialty 11B (Infantryman).  He was assigned to Company B, 3rd Battalion, 17th Infantry Regiment, Fort Ord, CA, from 31 July 1990 to 3 June 1993.

3.  His record contains a DA Form 5180-R (Urinalysis Custody and Report Record), which shows his urine sample tested positive for cocaine on 25 February 1993.

4.  His record contains a DA Form 4856 (General Counseling Form), dated 10 March 1993, wherein he received a negative counseling for testing positive for cocaine in a urinalysis test.

5.  His record contains a DA Form 3822-R (Report of Mental Status Evaluation), dated 17 March 1993, that shows he displayed normal behavior, was fully alert, fully oriented, had a clear thinking process, his thought content was normal, and he had a good memory.  It was the medical official's impression that the applicant had the mental capacity to understand and participate in proceedings; he met retention standards.  Based on the medical official's assessment, he was psychiatrically cleared for any administrative action deemed appropriate by his command.

6.  His record contains a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice, dated 29 March 1993, which shows he accepted nonjudicial punishment (NJP) for wrongful use of cocaine between on or about 13 February 1993 and 17 February 1993.

7.  On 15 April 1993, his immediate commander notified him of his intent to initiate separation action against him in accordance with paragraph 14-12c of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for wrongful use of cocaine.  He acknowledged receipt of the commander's intent to separate him and was advised of the basis for the contemplated separation action, the type of discharge he could receive, and the procedures/rights available to him.

8.  On 15 April 1993, he consulted with legal counsel and was advised of 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 that were available to him.  He acknowledged that he understood he could encounter substantial prejudice in civilian life if a general discharge were issued to him.  He requested representation by counsel and elected to submit a statement on his own behalf.

9.  On 3 May 1993, he submitted a statement wherein he illustrated his accomplishments and achievements, provided character letters of reference, and stated he never willingly used or taken any illegal drugs to his knowledge.  He also requested, essentially, to be honorably discharged to permit him to utilize the Montgomery GI Bill.

10.  On 5 May 1993, the separation authority approved his discharge under the provisions of paragraph 14-12c of Army Regulation 635-200 and directed a general characterization of service.

11.  He was discharged accordingly on 3 June 1993.  His DD Form 214 shows he was discharged in accordance with Army Regulation 635-200, paragraph 
14-12c(2)(a), by reason of "misconduct – abuse of illegal drugs" with a character of service of under honorable conditions (general).  His separation code was listed as "JKK."  This form further shows he completed a total of 3 years, 1 month, and 17 days of net active service.

12.  On 4 August 1997, the Army Discharge Review Board (ADRB) denied his request for an upgrade of his discharge but determined that the reason and authority for his discharge should be changed from paragraph 14-12c for misconduct – abuse of illegal drugs to paragraph 14-12c(2) for misconduct.  Accordingly, he was issued a new DD Form 214 reflecting these changes.

13.  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 commission of a serious offense.  Abuse of illegal drugs is serious misconduct.  Separation action normally will be based upon commission of a serious offense.  However, relevant facts may mitigate the nature of the offense.  Therefore, a single drug abuse offense may be combined with one or more minor disciplinary infractions or incidents of other misconduct and processed for separation as appropriate.  First-time offenders in grades E-1 through E-4 may be processed for separation as appropriate.  The separation reason in all separations authorized by this paragraph will be "misconduct – abuse of illegal drugs."  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.

14.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides 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. 
Table 2-3 (SPD/RE Code Cross Reference Table) states the SPD code "JKK" applies to persons who are discharged for misconduct (drug abuse) under the provisions of paragraph 14-12c(2), Army Regulation 635-200.

15.  Army Regulation 635-200, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be upgraded to honorable and the reason of separation upgraded to something more favorable to allow him to serve his community as a police officer.

2.  There is no evidence of record and the applicant did not provide evidence to show he did not use an illegal drug, the results of his urinalysis were incorrect, or there was an administrative error in his discharge.  Further, the evidence of record shows the ADRB previously amended his narrative reason for separation from "misconduct – abuse of illegal drugs" to "misconduct."  The use of an illegal drug definitely constitutes misconduct; therefore, he is not entitled to a further amendment to his narrative reason for separation.

3.  Additionally, based on his record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

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)                                         AR20120006444



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ABCMR Record of Proceedings (cont)                                         AR20120006444



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