IN THE CASE OF:	  

		BOARD DATE:	  22 January 2013

		DOCKET NUMBER:  AR20120012042 


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 her uncharacterized discharge and correction of her reentry eligibility (RE) code in order to be reinstated to active duty with the Maryland Army National Guard (MDARNG).

2.  The applicant states the assignment of an RE code of 4 was unjustified based on the circumstances of the offense, mitigating factors, and false information which was used to deny a more favorable RE code.  She further states the separation authority was provided incorrect dates of her offense which gave the impression she had previously used marijuana at Fort Lee, VA.  She claims there was no pattern of drug use, as opposed to a one-time offense, and she believes the separation authority had the power to grant her a more compassionate and favorable RE code.  She further states she is truly sorry and deeply regrets her actions.  She has frequently been screened and passed drug tests from her employers, has graduated from Morgan State University with a Bachelor of Arts degree, and believes the RE code that is denying her ability to reenter the Army is unjust.   

3.  The applicant provides:

* Orders 293-009
* 3 memoranda
* a self-authored statement
* a letter of support
* Orders 9142006
* DA Form 4856 (Developmental Counseling Form)
* DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ))
* 2-page enclosure to DA Form 2627
* Orders 223-0503
* 2-page Resume

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show she enlisted in the MDARNG on 27 November 2007 for a period of 6 years within career management field 25 (Signal).  

2.  On 28 May 2009, she was ordered to initial active duty for training for advanced individual training.

3.  On 4 June 2009, she tested positive for marijuana by biochemical testing.

4.  On 17 June 2009, the applicant's immediate commander notified her of his intent to initiate separation action against her in accordance with paragraph      14-12c of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), by reason of misconduct.  On 4 June 2009, she submitted a urine sample which tested positive for marijuana on 15 June 2009.  In the applicant's counseling the commander stated his decision was made based on her wrongful use of an illegal drug (marijuana).  

5.  On 29 June 2009, she accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for wrongfully using marijuana.  

6.  On 4 August 2009, the applicant was afforded the opportunity to consult with legal counsel who advised her of the basis for the contemplated separation action for misconduct and its effect, of the rights available to her, the effect of any action taken by her in waiving her rights, and the type of discharge and its effect on further enlistment or reenlistment.  She acknowledged she understood that she could expect to encounter substantial prejudice in civilian life if a less than honorable discharge was issued to her.  She also elected to submit a statement on her own behalf.  She stated that she understood what she did was wrong and accepted responsibility for her actions.  She had joined the Army to make a difference in her life.  She hoped to make the Army her career and one day become an Army officer.  She further stated there was no excuse for her behavior and she acknowledged she understood the seriousness of her actions and had learned from the situation she was in.  

7.  On 10 August 2009, 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 her service be uncharacterized.  Accordingly, the applicant was discharged on 13 August 2009.  

8.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) she was issued confirms she was discharged under the provisions of paragraph       14-12c of Army Regulation 635-200 with an uncharacterized character of service  by reason of misconduct  (drug abuse).  She completed 2 months and 16 days of creditable active service during this period.  Her 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)

9.  Orders 293-009, issued by Headquarters, MDARNG, Fifth Regiment Armory, Baltimore, MD, dated 20 October 2009, show the applicant was discharged from the ARNG and as a reserve of the Army on 14 August 2009.  She received an uncharacterized discharge with a RE code of "4."

10.  On 11 January 2012, the Army Discharge Review Board (ADRB) unanimously voted to deny her petition for an upgrade of her discharge.

11.  The applicant provided a letter from the Chief of Staff, Maryland Military Department, who stated the MDARNG could not support or deny her request to appeal her separation or RE code based on National Guard Regulation 600-200 (Enlisted Personnel Management) chapter 6, as the MDARNG does not have the authority to approve an upgrade of an uncharacterized separation or RE code initiated and issued by the Active Component of the Army.  The Chief of Staff further stated the MDARNG was not opposed to the applicant receiving an upgrade to her RE code in her appeal to the ADRB; however, due to the fact that she had not completed her initial training in its entirety the ADRB would be unable to upgrade her discharge to anything other than the uncharacterized discharge she currently holds.

12.  The applicant also provides a letter from her father, a retired U.S. Army sergeant major, who states he realizes the use of a controlled substance is grounds for discharge, but he questions why the commander chose not to exercise his right to recommend a lesser option.  He further states he believes the officials at Fort Lee were influenced by something that is not contained in the record and feels his daughter is worthy of a second chance to serve her country. 

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 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.

14.  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. 

15.  A member of a Reserve component who is not on active duty or who is serving under a call or order to active duty for 180 days or less begins entry-level status upon enlistment in a Reserve component.  Entry-level status of such a member of a Reserve component terminates (a) 180 days after beginning training if the Soldier is ordered to active duty for training (ADT) for one continuous period of 180 days or more; or (b) 90 days after the beginning of the second period of ADT if the Soldier is ordered to ADT under a program that splits the training into two or more separate periods of active duty.  For the purposes of characterization of service, the Soldier's status is determined by the date of notification as to the initiation of separation proceedings.

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 includes 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 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 her discharge shows that SPD code of "JKK" has a corresponding RE code of "4."

DISCUSSION AND CONCLUSIONS:

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

2.  During the first 180 days of continuous active military service, a member's service is under review.  When separated within the first 180 days, service is usually not characterized unless the circumstances of the separation warrant an under other than honorable conditions discharge.  An honorable characterization may be given only if the service clearly warrants that characterization by unusual circumstances of personal conduct and performance of military duty and approval by the Secretary of the Army.  

3.  The evidence of record shows her discharge was appropriate because the quality of her service during her enlistment was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  Based on her overall record of indiscipline, her service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered her service unsatisfactory and she could have received an under other than honorable conditions discharge.  It appears the command considered her relative inexperience and allowed her to separate with an uncharacterized discharge.  Therefore, she is not entitled to an upgrade of her discharge.

4.  An uncharacterized discharge is neither positive nor negative and it is not derogatory.  It simply means the Soldier did not serve long enough to qualify for a specified characterization of service.

5.  Her separation and RE codes were assigned based on her 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 her for discharge.  The underlying reason for her discharge was her 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 an "RE-4" which are correctly shown on her DD Form 214.  

6.  The applicant has not shown an error or an injustice and she did not provide any evidence or sufficiently mitigating argument to warrant a change in the character of her service or a change in her RE code.  Therefore, she 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)                                         AR20120012042



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ABCMR Record of Proceedings (cont)                                         AR20120012042



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