BOARD DATE:	  19 September 2013

		DOCKET NUMBER:  AR20130002134 


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 correction of the narrative reason for separation from misconduct to something more favorable.

2.  The applicant states:

* he failed a urinalysis 7 years ago and he realizes he made a mistake
* he tried to reenter military service on 22 July 2013 and he was told there wasn't a misconduct waiver
* he was told at the time of his discharge that he had to wait 3 years in order to be able to reenlist
* all he wants is a chance to serve his country again; he does not think this minor infraction should permanently hinder his chance to serve 

3.  The applicant did not provide any 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's records show he enlisted in the Regular Army on 22 January 2003 and he held military occupational specialty 52D (Power Generation Specialist).  

3.  He reenlisted on 17 September 2005 and he served in Iraq from 10 January 2005 to 27 January 2006.  He was awarded or authorized the Army Achievement Medal, National Defense Service Medal, Iraq Campaign Medal, Global War on Terrorism Service Medal, Korea Defense Service Medal, and Army Service Ribbon. 

4.  On 28 March 2006, he participated in a unit urinalysis and his urine sample tested positive for marijuana. 

5.  On 26 April 2006, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for wrongfully using marijuana.

6.  On 11 July 2006, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for commission of a serious offense.  He cited the applicant's positive test for illegal drugs.  He recommended a general discharge under honorable conditions.

7.  On 11 July 2006, 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, the possible effects of this discharge, and the procedures and rights available to him.  He waived consideration of his case by an administrative separation board.  He further indicated he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him and he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of a discharge under other than honorable conditions.

8.  Subsequent to this acknowledgement, the immediate commander initiated separation action against him under the provisions of paragraph 14-12c of Army Regulation 635-200.

9.  On 13 July 2006, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct - commission of a serious offense and directed his service be characterized as general under honorable conditions.  Accordingly, the applicant was discharged on 31 July 2006.

10.  His DD Form 214 confirms he was discharged by reason of misconduct - commission of a serious offense in pay grade E-1 on 31 July 2006 under the provisions of paragraph 14-12c of Army Regulation 635-200 with a character of service of under honorable conditions (general).  This form shows he completed 3 years, 6 months, and 9 days of creditable active service during the period under review.  Additionally, his DD Form 214 shows in:

* item 26 (Separation Code) – JKQ
* Reentry (RE) Code - 3
* Item 28 (Narrative Reason for Separation) – Misconduct (Serious Offense) 

11.  On 28 February 2008, the Army Discharge Review Board (ADRB) reviewed his discharge but found it proper and equitable.  Accordingly, the ADRB denied his petition for an upgrade of his discharge.

12.  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 include 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.

13.  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

14.  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 "JKQ" 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 (illegal drugs).

15.  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 "JKQ" has a corresponding RE code "3."

DISCUSSION AND CONCLUSIONS:

1.  The applicant committed a serious offense in that he wrongfully used illegal drugs.  Accordingly, his chain of command initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  He was accordingly discharged under the provisions of paragraph 14-12c of Army Regulation 635-200 due to this misconduct. 

2.  His separation code, RE code, and narrative reason for separation were assigned based on the fact that he was discharged under the provisions of chapter 14-12c of Army Regulation 635-200 due to his misconduct - commission of a serious offense.  Absent the commission of this offense, there was no fundamental reason to process him for discharge.  The underlying reason for his discharge was his serious offense.  The only valid narrative reason for separation permitted under that paragraph is "misconduct - commission of a serious offense" and the appropriate separation code associated with this discharge is "JKQ" which is correctly shown on his DD Form 214.  An SPD Code of "JKQ" has a corresponding RE code of 3.  







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)                                         AR20130002134





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ABCMR Record of Proceedings (cont)                                         AR20130002134



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