BOARD DATE:	  15 October 2013

		DOCKET NUMBER:  AR20130003125 


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 his previously-denied request to upgrade his general under honorable conditions discharge to an honorable discharge and to change his Reenlistment Eligibility (RE) Code to a more favorable code.

2.  The applicant states, in effect:

	a.  He does not use drugs or alcohol and claims he was tested for drugs twice within 10 days (22 November through 2 December 2005).

	b.  He does not understand why his command would repeat a drug test so soon when it takes 30 days for the drug to be eliminated from the body.

	c.  He received no rehabilitation and does not understand why his commander waived RESPECT-MIL (Re-engineering Systems of Primary Care Treatment in the Military) Services.

	d.  His subsequent physical exam urine test reflects negative for drugs.

	e.  His audiogram examination paperwork is undated and has his incorrect date of birth.

3.  The applicant provides:

* letters of support 
* a birth certificate
* DD Form 2808 (Report of Medical Examination)
* DA Form 8003 (Army Substance Abuse Program (ASAP) Enrollment)
* DD Form 2215E (Reference Audiogram)
* DA Form 669-1-R (Army Continuing Education Systems (ACES) Record Continuation Sheet)

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 AR20110017091, on 16 February 2012.

2.  The applicant provides new arguments which will be considered by the Board.

3.  The applicant was born on 15 July 1982, and he was over 20 years of age when he enlisted in the Regular Army (RA) on 18 February 2003.  He completed training, was awarded military occupational specialty 92G (Food Service Operations), and was transferred to Germany on 18 July 2003.  He was advanced to pay grade E-4 on 18 February 2005 and he departed Germany on     18 July 2005 for assignment to Fort Bliss, TX.

4.  Evidence shows the applicant tested positive for marijuana during a command directed urinalysis on 22 November 2005.  His command was notified and sergeant D----- retrieved the results of the applicant's test on 2 December 2005 at 1022 hours.

5.  On 5 December 2005, the applicant was informed of his positive urinalysis test for marijuana, was counseled for his misconduct, and he was recommended for nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ).  

6.  On 6 December 2005, the applicant was command referred for enrollment in the ASAP due to unsatisfactory performance and behavior stemming from his improper use of drugs and subsequent receipt of a positive urinalysis test for marijuana.

7.  On 14 December 2005, while holding the rank specialist, and in a closed hearing, he accepted NJP under the provisions of Article 15, UCMJ for wrongfully using marijuana at or near Fort Bliss, TX, between on or about 23 October and 22 November 2005.  
8.  The DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) shows that he elected not to demand trial by court-martial, elected not to submit an appeal to the Article 15, and did not submit additional matters.  

9.  The applicant's date of physical examination is blank; however, his Report of Medical History form is dated 3 February 2006.  Since these forms are normally completed at the same time, it is reasonable to presume the applicant received his physical on this date.  Laboratory findings at this time show the applicant's urinalysis as negative and tests for drugs, alcohol, and HIV also indicated negative.

10.  The applicant's record contains a Reference Audiogram which incorrectly lists his date of birth as 3 February 1986.   

11.  On 11 May 2006, the applicant's commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12c, chapter 14, for misconduct – commission of a serious offense.  He recommended a general discharge.

12.  On 11 May 2006, the applicant acknowledged receipt of the notification and on 12 May 2006, he consulted with legal counsel, and was advised of the basis for the contemplated separation action, the possible effects of a discharge, the rights available to him, and the effect of any action taken by him in waiving his rights.

13.  As part of his individual benefits counseling on 16 May 2006, the applicant's record contains a DA Form 669-1-R authenticated by the applicant which shows he was aware in accordance with information paper number 4, "Soldiers must complete 36 months active duty and must get a fully honorable discharge to become eligible to use the Montgomery GI Bill (MGIB) benefit."

14.  Subsequently, the separation authority approved the applicant's discharge under Army Regulation 635-200, paragraph 14-12c, chapter 14, and directed that he receive a General Discharge.  He further waived the requirement for rehabilitative transfer pursuant to Army Regulation 635-200, chapter 1-16.

15.  On 24 May 2006, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was separated for misconduct – drug abuse.  He completed a total of 3 years, 3 months, and 7 days of creditable active military service and he was He was assigned a Separation Program Designator (SPD) Code of JKK (drug abuse) and an RE code of "4."
16.  The applicant's mother appears to contend that race or ethnicity played a part in her son's discharge; however, his record is void of any evidence and he did not provide any evidence to show race or ethnicity played any part in his discharge for misconduct - drug abuse.

17.  The applicant applied to the Army Discharge Review Board (ADRB) for upgrade of his discharge contending that he desired to use the MGIB benefits he earned.  On 6 October 2009, he was notified he was properly and equitably discharged and his request was denied.  He once again applied to the ADRB for an upgrade of his discharge and he was granted a personal appearance before the ADRB traveling panel in Atlanta, GA, on 21 April 2011.  On 2 May 2011, the ADRB voted unanimously to deny his request.

18.  The applicant provides a letter from his mother who claims:

	a.  Her son's character is based on a positive urinalysis test for marijuana on 22 November 2005 and retested on 11 December 2005.

	b.  RESPECT-MIL and rehabilitation services were not intervened at 100 percent.

	c.  Her son's Mexican first sergeant desired to punish a black specialist who was on his way to go before the promotion board.

	d.  Her son's character is outstanding, devoted, hard-working, consistent, and dependable.  He attends currently attends college and continues to work.

19.  The applicant provides two additional third-party letters supporting his request.  These individuals attest to his good character and excellent post-service conduct.

20.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service.  Individuals in pay grades E-5 and above must be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 may also be processed after a first drug offense and must be processed for separation after a second offense.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.  


21.  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.

22.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of Armed Forces RE codes, including RA RE codes.  An RE code of "4" applies to persons who have a nonwaivable disqualification.  Chapter 4 states recruiting personnel have the responsibility for initially determining whether an individual meets current enlistment criteria and are responsible for processing waivers.  

23.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities and reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  The SPD code JKK is to be used for RA Soldiers involuntarily discharged for misconduct - drug abuse.

24.  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 the SPD code JKK has a corresponding RE code of "4."  

25.  RESPECT-Mil is a program implemented in 2007 and directed by the Army Surgeon General to provide primary-care based screening, assessment, treatment, and referral of Army Solders with depression and post-traumatic stress disorder.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to reconsider his previously-denied request to upgrade his general under honorable conditions discharge to an honorable discharge and to change his RE Code to a more favorable code has been carefully reexamined and found to lack merit.

2.  Records show the applicant was over 23 years of age at the time of his offense.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service.

3.  With regard to the issues raised by the applicant and his mother:

	a.  There is no evidence and the applicant did not provide any evidence to support his claim that he was tested for drugs twice within 10 days.  Regardless, his commander had every right to discharge the applicant upon receipt of the applicant's positive test for marijuana.

	b.  The RESPECT-Mil program was initiated in 2007, well after the applicant was discharged; therefore, it obviously was not available when the applicant was processed for separation in 2006.

	c.  While the applicant's separation physical urinalysis tested negative for drugs and alcohol, this was a subsequent test and has no bearing on the positive result for marijuana on his earlier test.

	d.  The applicant appears to infer that because the date of birth on his audiogram paperwork is incorrect the discharge process was in some way flawed or unjust; however, there is no evidence in the applicant's record and the applicant has provided no evidence to support this contention.

	e.  The applicant's mother appears to contend that race or ethnicity played a part in her son's discharge.  The applicant did not provide any evidence nor do the applicant's records contain any evidence that race or ethnicity played a part in his discharge for misconduct – drug abuse.

	f.  Notwithstanding the positive supporting statements provided by the applicant, post-service conduct alone is not a basis for upgrading a discharge.

4.  His SPD and RE codes were assigned based on his discharge under the provisions of Army Regulation 635-200, chapter 14, due to misconduct – drug abuse.  Absent the positive test for marijuana, there would appear to be no fundamental reason to process him for discharge.  The underlying reason for his discharge was his misconduct for drug abuse.  The only valid narrative reason for separation permitted under this paragraph is "misconduct – drug abuse."

5.  The appropriate SPD code associated with this type of discharge is JKK and the corresponding RE code associated with this discharge is RE-4, both of which are correctly shown on his DD Form 214.  


6.  The applicant's offense is an act of misconduct which warrants a less than fully honorable discharge.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

7.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

8.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making an applicant eligible for veteran's benefits such as the MGIB.  Therefore, any questions regarding eligibility for education and other benefits should be addressed to the Department of Veterans Affairs.

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 AR20110017091, dated 16 February 2012.



      __________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)                                         AR20130003125



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ABCMR Record of Proceedings (cont)                                         AR20130003125



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