IN THE CASE OF:	

		BOARD DATE:	  23 October 2012

		DOCKET NUMBER:  AR20120007512 


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 an upgrade of his general discharge under honorable conditions to a fully honorable discharge and correction of associated codes.

2.  The applicant states:

* There was no true evidence submitted; he has no trust of the Government
* His punishment was considered to be a second offense
* He did admit to misconduct in a sworn statement; however, he could have been lying just to get out of the Army
* He was very upset with his chain of command at the time because of the way they handled everything
* He never thought his chain of command should have gone through (with the separation action) without hard evidence
* He thought after leaving Germany and being assigned to a new unit he could not be held responsible 
* He now realizes the Government screwed him out of a job and a home and that the Government did not care about him

3.  The applicant did not provide any evidence.

CONSIDERATION OF EVIDENCE:

1.  Having had prior service, the applicant's records show he enlisted in the Regular Army on 2 November 2007 and he held military occupational specialty 88M (Motor Transport Operator).  
2.  On 25 February 2008, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana.  

3.  He served in Kuwait/Iraq from 7 April 2008 to 22 May 2009 and he executed a reenlistment in the Regular Army on 17 March 2009.  He was awarded or authorized the:

* Army Achievement Medal
* National Defense Service Medal
* Global War on Terrorism Service Medal
* Iraq Campaign Medal with campaign star
* Army Service Ribbon
* Overseas Service Ribbon

4.  On 31 October 2009, he participated in a unit urinalysis and his urine sample tested positive for marijuana.

5.  On 26 February 2010, the Fort Benning, GA, U.S. Army Criminal Investigation Command (known as CID) received a request for assistance from the Baumholder CID to conduct a subject interview of the applicant, then assigned to the 104th Transportation Company, regarding the wrongful use and possession of a controlled substance. 

6.  On 1 March 2010, the applicant was advised of his rights, which he waived, and provided a sworn statement that his friend, Private PJP, of Headquarters and Headquarters Company, 4th Battalion, 70th Armor, Germany, on approximately three occasions purchased the marijuana from a white male.

7.  On 20 November 2010, the applicant's 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), by reason of misconduct - commission of a serious offense (wrongfully possessing and using marijuana between on or about 1 August 2009 and on or about 31 October 2009).  He recommended a general discharge.

8.  On 20 November 2010, the applicant acknowledged receipt of the commander's intent to separate him.  He subsequently consulted with legal counsel and he 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 of the procedures/rights that were available to him.  He waived consideration of his case by an administrative separation board, waived personal appearance before an administrative separation board, and he elected not to submit a statement in his own behalf.  He further indicated:

* he understood he could expect to encounter substantial prejudice in civilian life if a general, under honorable conditions discharge was issued to him
* he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge

9.  Subsequent to the applicant's acknowledgement and consult with counsel, his immediate commander initiated separation action against him in accordance with chapter 14 of Army Regulation 635-200, for misconduct - commission of a serious offense.  The immediate commander recommended an under honorable conditions (general) discharge.

10.  On 15 December 2010, the applicant's intermediate commander recommended disapproval of the applicant's discharge and recommended he be retained in the Army.

11.  On 23 January 2011, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct - commission of a serious offense and directed his service be characterized as under honorable conditions.   Accordingly, the applicant was discharged on 15 February 2011.  

12.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged under the provisions of paragraph       14-12c of Army Regulation 635-200 with a character of service of under honorable conditions (general) by reason of misconduct - commission of a serious offense (drug abuse).  He completed 3 years, 3 months, and 14 days of creditable active service during this period.  His DD Form 214 also shows in:

* item 26 (Separation Code) – the entry "JKK"
* item 27 (Reentry Code) – the entry "4"
* item 28 (Narrative Reason for Separation) – Misconduct (Drug Abuse)

13.  On 21 March 2012, the Army Discharge Review Board unanimously voted to deny his petition for an upgrade of his discharge.

14.  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 misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  Army policy states that an under other than honorable conditions discharge is normally considered appropriate for a Soldier discharged for patterns of misconduct; however, the discharge authority may direct an honorable or general discharge if such are merited by the Soldier's overall record.

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. 

16.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and U.S. Army Reserve.  It states individuals will be assigned RE codes based on their service records or the reason for discharge prior to discharge or release from active duty.  Table 3-1 included a list of Regular Army RE codes.

* RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army; they are qualified for enlistment if all other criteria are met
* RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable; they are ineligible unless a waiver is granted
* RE-4 applies to Soldiers separated from their last period of service with a nonwaivable disqualification

17.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  SPD code "JKK" is the correct code for Soldiers separating under the provisions of paragraph 14-12c of Army Regulation 635-200 by reason of misconduct – commission of a serious offense (drug abuse).

18.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  This cross reference table shows the SPD code and a corresponding RE code.  The table in effect at the time of his discharge shows that SPD code "JKK" has a corresponding RE code "4."

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant committed a serious offense in that he wrongfully possessed and used illegal drugs.  As a result, his chain of command initiated separation action against him.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He was accordingly discharged under the provisions of chapter 14 of Army Regulation 635-200 due to his misconduct.

2.  The evidence of record shows his discharge was appropriate because the quality of his service during his enlistment was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  Based on his overall record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable discharge.

3.  His separation and RE codes were assigned based on his discharge under the provisions of chapter 14 of Army Regulation 635-200 due to misconduct – abuse of illegal drugs.  Absent the misconduct, there was no fundamental reason to process him for discharge.  The underlying reason for his discharge was his misconduct – abuse of illegal drugs.  The only valid narrative reason for separation permitted under paragraph 14-12c is "misconduct (drug abuse)" and the appropriate separation and RE codes associated with this type of discharge are "JKK" and "RE-4" which are correctly shown on his DD Form 214.  Therefore, he is not entitled to the requested relief.

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)                                         AR20120007512





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ABCMR Record of Proceedings (cont)                                         AR20120007512



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