IN THE CASE OF:	  

		BOARD DATE:  13 June 2013

		DOCKET NUMBER:  AR20120021130 


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 reconsideration of her earlier request for:

* upgrade of her under honorable conditions (general) discharge to a fully honorable discharge
* upgrade of her Reentry (RE) Code from an RE-3 to an RE-1

2.  The applicant states:

* her discharge from the Regular Army (RA) was highly traumatic; she had a spotless record for 13 years
* she was a little over 2 months pregnant with her only son; she also had a 15-month old daughter; she had been married for 8 years at the time
* she was due for promotion to sergeant first class and she was recommended for the Army recruiter ring
* she had lost her father and oldest brother to sudden heart attacks within 2 days of each other, at the time
* the mental and physical toll placed on a pregnant Soldier who was previously a military rape victim caused her major depression
* during her exit interview, her mood was evaluated as unremarkable and/or she was unable to articulate her emotional distress
* she is innocent of the charges surrounding her separation from the Army and her service warrants nothing less than an honorable discharge

3.  The applicant provides multiple Department of Veterans Affairs rating decisions. 
CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110005828, on 13 October 2011.

2.  The applicant provides a new argument and copies of her VA ratings decisions which were not previously considered.  

3.  The applicant's records show she enlisted in the RA on 28 October 1976 and she held military occupational specialties 76J (Medical Supply Sergeant) and 00R (Recruiter).  

4.  She served through multiple reenlistments in a variety of stateside or overseas assignments and she attained the rank/grade of staff sergeant (SSG)/E-6.  She was assigned to the U.S. Army Recruiting Company, Indiana, PA.  

5.  On 1 August 1989, she participated in a unit urinalysis and her urine sample tested positive for cocaine.  

6.  On 19 August 1989, her 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) for misconduct - commission of a serious offense.  He cited the specific reason as her positive urinalysis for cocaine.  He recommended an under other than honorable conditions discharge. 

7.  On 29 August 1989, she received pregnancy counseling.  She informed the unit adjutant she desired to be separated. 

8.  On 12 September 1989, she acknowledged receipt of the commander's intent to separate her.  She consulted with legal counsel and was advised of the basis for the contemplated separation action for misconduct, the type of discharge she could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to her.  She initially requested consideration of her case by an administrative separation board and/or personal appearance before a board.  She acknowledged she:

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

9.  Subsequent to this acknowledgement, the applicant's immediate commander initiated separation action against her in accordance with paragraph 14-12c of Army Regulation 635-200 due to misconduct - commission of a serious offense.  

10.  On 3 October 1989, she again consulted with legal counsel and she submitted a conditional waiver.  She waived consideration of her case by an administrative separation board and personal appearance before such board contingent upon receiving a characterization of service no less favorable than a general, under honorable conditions.  

11.  On 5 October 1989, she underwent a mental status evaluation.  Her behavior was noted as normal; her alertness level was fully alert; her mood was unremarkable; and her thinking process and contents were normal.  The military medical officer indicated she had the mental capacity to understand and participate in proceedings and she was mentally responsible.  She was noted to be 3-months pregnant and she was psychiatrically cleared for any administrative actions deemed appropriate by her chain of command. 

12.  On 27 October 1989, her senior commander recommended approval with the issuance of an under honorable conditions characterization of service.  

13.  A military attorney reviewed the separation packet and found it legally sufficient. 

14.  On 17 November 1989, the commanding general/separation authority approved the conditional waiver and ordered the applicant discharged from the Army under the provisions of chapter 14-12c of Army Regulation 635-200 by reason of misconduct - abuse of illegal drugs with the issuance of an under honorable conditions discharge.  Accordingly, the applicant was discharged on 29 November 1989.

15.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) she was issued confirms she was discharged for misconduct under the provisions of chapter 14, Army Regulation 635-200, with her service characterized as under honorable conditions.  This form further confirms she completed 13 years, 1 month, and 2 days of creditable active military service.   Additionally, her DD Form 214 shows in:

* item 26 (Separation Code) – the entry "JKK"
* item 27 (Reentry Code) – the entry "3"

16.  There is no indication she petitioned the Army Discharge Review Board for an upgrade of her discharge within that board's 15-year statute of limitations. 

17.  She submitted multiple post-service VA rating decision showing award of service-connected disability compensation for post-traumatic stress disorder, endometriosis, and hysterectomy. 

18.  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 a discharge under other than honorable conditions 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 is merited by the Soldier's overall record.

19.  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.

20.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), in effect at the time, covered eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and U.S. Army Reserve.  It stated that individuals would 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.

* An 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
* An 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

21.  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 (abuse of illegal drugs).

22.  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 "3."

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant committed a serious offense by wrongfully using illegal drugs.  Accordingly, her chain of command initiated separation action against her.  She consulted with legal counsel and she was advised of the reason for separation, type of discharge she could receive, the possible effects of this discharge, and the procedures and rights available to her.

2.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Her discharge was appropriate because the quality of her service during her last enlistment was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.

3.  The challenges she encountered at the time are noted.  However, there would have been many outlets - other than illegal drugs - to address and tackle these issues had she chosen to do so.  

4.  Based on her record of indiscipline, her service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, she is not entitled to an honorable discharge. 

5.  She was discharged under the provisions of chapter 14 of Army Regulation 635-200 for committing a serious offense.  Her RE code was assigned based on her discharge under the provisions of chapter 14 of Army Regulation 635-200 due to misconduct – commission of a serious offense.  Absent the illegal drugs, there was no fundamental reason to process her for discharge.  The underlying reason for her discharge was her misconduct.  The appropriate Separation Code associated with this type of discharge is "JKK" and the corresponding RE Code is RE-3 which is correctly shown on his DD Form 214.  Therefore, she is not entitled to an upgrade of her RE code. 


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 to amend the decision of the ABCMR set forth in Docket Number AR20110005828, dated 13 October 2011.



      _______ _  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)                                         AR20120021130





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ABCMR Record of Proceedings (cont)                                         AR20120021130



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