IN THE CASE OF:	   

		BOARD DATE:	  17 September 2013

		DOCKET NUMBER:  AR20130002618 


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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) to change his narrative reason of separation, "Misconduct – Abuse of Illegal Drugs," to "something more accurate."

2.  The applicant states he was court-martialed for having a small amount of marijuana in the barracks which he was holding for a girlfriend.  He was not using marijuana.  He was a good Soldier.  As a result of this court-martial, he served on extra duty for 3 months.  He was very upset with himself and the Army.  During a barracks inspection he told the inspecting officer he wanted to be a civilian.  The officer was upset and told him off.  Shortly thereafter he was informed he was being discharged.  In retrospect, he feels he was discharged for having a poor attitude vice drug abuse.  He adds:

* having a discharge for drug abuse stops him from getting hired by companies with strict hiring rules
* he has kept his record completely clean and has a security guard card as proof
* his abuse of drugs was very limited
* he was only found guilty of one drug-related charge and has not committed any such offenses since that time

3.  The applicant provides a registration card from the Bureau of Security and Investigative Services, dated 27 June 2012.


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 enlisted in the Regular Army on 4 February 1987 and held military occupational specialty 52C (Utilities Equipment Repairer).  The highest rank/grade he attained while serving on active duty was private first class/E-3.

3.  His records contain numerous counseling forms ranging in date from January 1988 to October 1988 that show he was counseled for:

* being out of uniform
* needing a haircut
* promoting team work/communicating with superiors
* failing room inspection/maintenance
* job performance/questioning orders

4.  On 19 August 1988, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for possession of marijuana.

5.  His records contain a U.S. Army Criminal Investigation Command (CID) Report of Investigation, dated 28 July 1988, which states an investigation by the Jefferson County Sherriff's Department and the CID Drug Suppression Team (DST) disclosed that the applicant, a known trafficker of drugs to Fort Drum Soldiers, sold 2.30 grams of marijuana to a semi-covert DST member for $20.00, CID funds.  On another occasion, the applicant, in concert with another individual, sold approximately 4 grams of marijuana to a semi-covert DST member for $30.00.

6.  His records do not contain any evidence showing he was convicted by a court-martial.

7.  His records contain a Standard Form 93 (Report of Medical History), Standard Form 88 (Report of Medical Examination), and DA Form 3822-R (Report of Mental Status Evaluation).  These forms show he received pre-separation medical and mental evaluations on 3 November 1988 and he was found medically, physically, and psychiatrically fit to participate in separation proceedings.

8.  On 5 December 1988, he was notified by his immediate commander of the intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, paragraph 14-12c, for commission of a serious offense.  His commander stated he was recommending separation because the applicant was found to be in possession of and distributed 4 grams of marijuana on 13 April 1988 and he received nonjudicial punishment on 19 April 1988 for possession of marijuana on or about 18 March 1988.  The applicant acknowledged receipt of notification the same day.

9.  On 8 December 1988, he acknowledged he had been advised by counsel of the basis for the contemplated separation action under the provisions of Army Regulation 635-200, paragraph 14-12c, and its effects, the rights available to him, and the effects of any actions taken by him to waive his rights.

10.  On 16 December 1988, the separation authority approved the applicant's discharge under honorable conditions (general) under the provisions of Army Regulation 635-200, paragraph 14-12c.  He directed that the applicant would not be transferred to the U.S. Army Reserve Individual Ready Reserve and stated the applicant had no potential for useful service under conditions of full mobilization.

11.  On 23 January 1989, he was discharged accordingly.  His DD Form 214 shows he was discharged by reason of "Misconduct – Abuse of Illegal Drugs" and was assigned separation program designator (SPD) code "JKK" (Drug Abuse Rehabilitation Failure).  His DD Form 214 shows he completed 1 year, 10 months, and 20 days of active service.

12.  There is no indication he applied to the Army Discharge Review Board for a change to his narrative reason for separation within its 15-year statute of limitations.

13.  Army Regulation 635-200, chapter 14 (Separation for Misconduct), in effect at the time, established policy and prescribed procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.

	a.  Paragraph 14-12c (Commission of a Serious Offense) stated that the commission of a serious military or civil offense, if the specific circumstances of the offense warranted separation and a punitive discharge would be authorized for the same or a closely-related offense under the Manual for Courts-Martial, is subject to action under this chapter.

	b.  Paragraph 14-12c(2) (Abuse of Illegal Drugs) stated that abuse of illegal drugs was serious misconduct.  Separation action normally would be based upon commission of a serious offense.  However, relevant facts may mitigate the nature of the offense.  Therefore, a single drug abuse offense may be combined with one or more minor disciplinary infractions of incidents of other misconduct and processed for separation, as appropriate.

14.  Army Regulation 635-5-1 (Separation Program Designator Codes), in effect at the time, stated that SPD code "JKH" (Misconduct – Commission of a Serious Offense) was the proper SPD code for separations under the provisions of Army Regulation 635-200, paragraph 14-12c.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's DD Form 214 shows he was discharged in accordance with Army Regulation 635-200, paragraph 14-12c, and assigned SPD code "JKK."

2.  The evidence of record shows the narrative reason for separation and the SPD code are incorrect.  He was discharged for selling illegal drugs, not drug abuse rehabilitation failure.  Therefore, his DD Form 214 should be corrected to show his SPD code as "JKH" and his narrative reason for separation as "Misconduct – Commission of a Serious Offense."

BOARD VOTE:

____x___  ____x___  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 for the period ending 23 January 1989 by:

* deleting the SPD code of "JKK" and replacing it with "JKH"
* deleting the narrative reason for separation of " Misconduct – Abuse of Illegal Drugs" and replacing it with " Misconduct – Commission of a Serious Offense"



      ____________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)                                         AR20130002618



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ABCMR Record of Proceedings (cont)                                         AR20130002618



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