IN THE CASE OF:	  

		BOARD DATE:  27 February 2014

		DOCKET NUMBER:  AR20130011725 


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, in effect, that his general discharge be upgraded to a fully honorable discharge and that his reason for separation be changed to “Miscellaneous/General Reasons Involuntary. 

2.  The applicant states that he has been doing overseas contract work for the U.S. Government since 2008 and has worked with elite groups both in Iraq and Afghanistan and he would like to rejoin the Army and fight as a paratrooper instead as a civilian counterpart.

3.  The applicant provides no additional documents with his application.

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 30 October 2003 for a period of 5 years, assignment to Fort Bragg, North Carolina and a $7,000 enlistment bonus.  He completed his basic training at Fort Knox, Kentucky and his advanced individual training at Aberdeen Proving Ground, Maryland before being  transferred to Fort Bragg.

3.  On 29 January 2007, nonjudicial punishment (NJP) was imposed against the applicant for the wrongful use of methylenedioxyamphetamine and marijuana.

4.  On 15 May 2007, 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, chapter 14 for misconduct – drug abuse.  He cited the applicant’s NJP for wrongful drug use as the basis for his recommendation.  The applicant’s chain of command recommended that he be retained in service.

5.  On 24 May 2007, the appropriate authority approved the recommendation for discharge and directed that he be given a general discharge.

6.  Accordingly, he was discharged under honorable conditions on 20 June 2007 under the provisions of Army Regulation 635-200, paragraph 14-12c(2) for Misconduct (Drug Abuse).  He had served 3 years, 7 months, and 21 days of active service and was issued a separation code of “JKK” and a RE Code of “4.”

7.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 29 December 2009 and on 22 April 2010 the ADRB determined that his discharge was both proper and equitable and voted to deny the applicant’s request.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories include minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, and commission of a serious offense, which includes drug offenses.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

	b.  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.

9.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states that the SPD code JKK is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 14, by reason of Misconduct (Drug Abuse).  The SPD/RE Code Cross Reference Table stipulates that an RE-4 code will be assigned to members separated under these provisions with an SPD code of JKK.

10.  Army Regulation 635-200 further states that prior to discharge or release from active duty, individuals will be assigned RE codes based on their service records or the reason for discharge.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the U.S. Army Reserve (USAR).  Table 3-1 included a list of the RA RE codes:

	a.  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.

	b.  RE-4 applies to Soldiers who are not considered eligible for reentry

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  Accordingly, the characterization and the narrative reason for separation were appropriate for the circumstances of his case.
 
3.   The applicant's contentions have been noted; however, they are not sufficiently mitigating when compared to the serious nature of his offense and the lack of evidence showing that he did not use illegal drugs.

4.  Accordingly, the applicant's overall service simply did not rise to the level of a fully honorable discharge or warrant a change in the narrative reason for separation.


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)                                         AR20130011725





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130011725



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1