IN THE CASE OF: 

		BOARD DATE:	  13 December 2012

		DOCKET NUMBER:  AR20120007963 


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:

	a.  upgrade of his general discharge to an honorable discharge;

	b.  change of his separation program designator (SPD) code of JKK;

	c.  change of his reentry eligibility (RE) code from 4 to 1; and

	d.  restoration of his rank/grade to specialist (SPC)/E-4.

2.  The applicant states his discharge was unjust because he was suffering from the effects of post-traumatic stress disorder (PTSD).

	a.  He contends his personal conduct started to decline in August 2009.  He was having nightmares, lapses out of reality, and increasing stress and anger.  His platoon sergeant informed him that seeking help would end his career that was headed towards a promotion to sergeant (SGT)/E-5 in the coming months.  His problems, which no one knew about because of the platoon sergeant's warning, got increasingly worse.

	b.  He sought help with alcohol and drugs.  In October 2009, he tested positive in a unit urinalysis screening.  He explained his problems to his first sergeant and company commander.  They sent him to the division psychologist and the Army Substance Abuse Program (ASAP).  It was determined he was an addict.
	c.  He was prescribed antidepressants that made his outbursts and time lapses worse.  He was out of control, misdiagnosed, and mistreated.  He threatened to hurt his supervisor.  He was hospitalized for 3 days, released, and denied leave for Christmas.

	d.  In January 2010, he was scheduled for nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ).  His chain of command stood and watched as he embarrassed himself before the battalion commander during the NJP proceedings.  He was forced to call his previous platoon sergeant who had left his training exercise to come and speak in his behalf.

	e.  He feels his chain of command used his drug addiction to hide the fact they should have done something sooner.  He spent 21 days in a dual diagnosis treatment while his wife was 32-36 weeks pregnant and alone.  The day he was released from treatment, his commander told him he had only 3 more days in the service.  He had to beg the hospital commander to allow his child to be born in the Army hospital.  He was put into a position that endangered other lives because of the nature of his mental condition.

	f.  He has since been evaluated by the Department of Veterans Affairs (VA) and diagnosed with PTSD.  The drug dependency was a bi-product of the effects from PTSD that was not correctly diagnosed and treated.  He is confident in these facts.

3.  The applicant provides no additional documentation.

CONSIDERATION OF EVIDENCE:

1.  On 7 September 2005, the applicant enlisted in the Regular Army (RA).  He completed his initial training and was awarded military occupational specialty 92G (Food Service Operations).

2.  The applicant served in Iraq from 5 February 2007 to 15 April 2008.  During his deployment, on 24 February 2008, he received NJP for consuming alcohol.

3.  On 7 October 2009, the applicant underwent a unit urinalysis test resulting in a positive finding for use of methamphetamine.  He was enrolled in Track 2, ASAP on 21 October 2009.

4.  On 8 January 2010, the applicant accepted NJP for wrongfully using methamphetamine, a controlled substance.  The proceedings indicate:

	a.  he did not demand trial by court-martial;

	b.  he requested a closed hearing;

	c.  he provided matters of defense, extenuation, and/or mitigation;

	d.  he did not request anyone to speak in his behalf;

	e.  he was found guilty;

	f.  his punishment was reduction to private (PV1)/E-1, suspended forfeiture, restriction and extra duty; and

	g.  he elected not to appeal the punishment.

5.  His record contains a DA Form 3822-R (Report of Mental Status Evaluation), dated 25 March 2010.  The evaluation indicated his behavior was normal, he was fully alert and oriented and displayed an unremarkable mood, his thinking was clear, his thought content was normal, and his memory was good.  The examiner opined the applicant was mentally responsible, he was able to understand and participate in the proceedings, and he met the retention requirements of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  He further remarked the applicant was depressed due to methamphetamine abuse.

6.  On 7 April 2010, the applicant’s commander notified him of his intent to separate him from the service under the provisions of Army Regulation 635-200 (Personnel Separation – Active Duty Enlisted Administrative Separations), chapter 14, for the commission of a serious offense, based on his testing positive for methamphetamine use.  The commander also noted the following incidents of misconduct:

* 20 January 2010:  Sleeping in his car
* 21 January 2010:  Failing to report back to work as ordered
* 21 January 2010:  Threatening a noncommissioned officer
* 8 February 2010:  Leaving his place of duty without being relieved
* 9 February 2010:  Failing to show for two appointments
* 10 February 2010:  Failing to report for duty

7.  On 7 April 2010, the applicant acknowledged receipt of the commander's recommendation and his right to consult with counsel.  He indicated that a statement was submitted; however, the statement is not contained in the available records.  He further waived representation by counsel.

8.  On 8 April 2010, the applicant’s commander recommended the applicant be separated from the service due to the commission of a serious offense and other misconduct as noted above.

9.  On 20 April 2010, the appropriate authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, chapter 14, and directed the applicant be issued a general discharge.

10.  On 12 May 2010, the applicant was discharged accordingly.  He completed
4 years, 8 months, and 6 days of creditable active duty service.  The DD Form 214 he was issued at the time shows in:

	a.  item 24 (Character of Service) the entry "Under Honorable Conditions (General)";

	b.  item 26 (Separation Authority) the entry "Army Regulation 635-200, paragraph 14-12c(2)";

	c.  item 26 (Separation Code) the entry "JKK";

	d.  item 27 (RE Code) the entry "4"; and

	e.  item 28 (Narrative Reason for Separation) the entry "Misconduct (Drug Abuse).

11.  On 11 November 2010, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 20 July 2011, after careful review of his application, military records, and all other available evidence, the ADRB determined he was properly and equitably discharged.  Accordingly, the applicant's request for a change in the character and/or reason for his discharge was denied.

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

	a.  Chapter 14 deals with separation for various types of misconduct, which includes drug abuse, and states individuals identified as drug abusers may be separated prior to their normal expiration of term of service.  It also states all Soldiers with 3 years or more of total military service will be processed for separation upon discovery of a drug offense.  It further states 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 635-5-1 (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.  It states that the SPD code JKK is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12c(2), by reason of misconduct (drug abuse).  The SPD/RE Code Cross Reference Table stipulates that an RE-4 code will be assigned to members separated under these provisions with an SPD code of JKK.

14.  Army Regulation 635-200 further states that prior to discharge or release from active duty, individuals will be assigned RE codes based on their service records or the reason for discharge.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the U.S. Army Reserve.  Table 3-1 includes a list of the RA RE codes:

	a.  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.

	b.  RE-2 (discontinued).

	c.  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 for enlistment unless a waiver is granted.

	d.  RE-4 applies to Soldiers who are separated from their last period of service with a nonwaivable disqualification.  They are ineligible for enlistment.

15.  Under the UCMJ, the maximum punishment allowed for violation of Article 112a for the wrongful use of methamphetamine is a punitive discharge and confinement for 5 years.


DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was reduced to PV1/E-1 as a result of NJP action on 8 January 2010, and not as a result of his administrative separation.  Therefore, there is no apparent error or injustice.

2.  The record shows the applicant was administratively separated due to his wrongful use of methamphetamine, a serious offense, and for other acts of misconduct.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.  Therefore, the type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3.  His assigned SPD code JKK and RE-4, establishing his ineligibility for enlistment/reenlistment, were correctly entered on his separation document in accordance with the governing regulations.  Therefore, there is no evidence of error or injustice.

4.  There is no apparent basis for removal or waiver of the applicant’s disqualification that established the basis for his SDP code JKK and RE-4.

5.  The applicant states the VA diagnosed him with PTSD and that his drug dependency was a bi-product of the effects from PTSD.  He contends that while on active duty he was not correctly diagnosed and treated for PTSD.  However, there is no evidence of record and he has not provided any documentary evidence that clearly shows his acts of misconduct were a result of his PTSD.  Furthermore, he has not provided sufficient evidence that shows the medical treatment he received while on active duty was improper and/or incorrect.

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20120007963



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ABCMR Record of Proceedings (cont)                                         AR20120007963



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