IN THE CASE OF:	  

		BOARD DATE:	  10 June 2014

		DOCKET NUMBER:  AR20130017105 


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 an upgrade of his:

* characterization of service from under honorable conditions (general) to honorable 
* narrative reason for separation from "Misconduct - Abuse of Illegal Drugs" to something more favorable
* reentry (RE) code from RE-4 to a more favorable code

2.  The applicant states his discharge should be upgraded.  He was not permitted to remain in the military even after proving his use of an illegal substance was purely experimental.  His narrative reason for separation does not accurately reflect who he is as a person.  

3.  The applicant provides four letters for the Department of Veterans' Affairs (VA), dated 12 September 2013.

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 1 July 2003 and held military occupational specialty 92Y (Unit Supply Specialist).  

3.  On 20 April 2004, he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to be at his appointed place of duty (morning accountability formation).

4.  On 20 August 2004, he accepted NJP under the provisions of Article 15 of the UCMJ for failing to be at his appointed place of duty on time (morning accountability formation).

5.  His record contains a positive drug report, issued by Tripler Army Medical Center, HI on 18 November 2004.  This report contained several allied documents and shows the applicant urine sample tested positive for cocaine.

6.  On 29 November 2004, he accepted NJP under the provisions of Article 15 of the UCMJ for the wrongful use of cocaine.

7.  His record contains a mental status evaluation, dated 9 December 2004, showing he had been referred for a psychiatric evaluation in conjunction with separation actions in accordance with (IAW) Army Regulation 635-200 (Active 
Duty Enlisted Administrative Separations), Chapter 14 (Misconduct) and he was psychiatrically cleared for any administrative action deemed appropriate by his chain of command.  The examining official stated there was no evidence of any psychiatric condition which would warrant disposition through medical channels and that he had the mental capacity to understand and participate in separation proceedings.  The medical official further stated he was mentally responsible and met medical retention standards.  

8.  His record contains a DD Form 458 (Charge Sheet), dated 11 January 2005 showing he was charged with:

* failing to go to his prescribed place of duty on or about 2 January 2005
* disobeying the lawful order of his superior commissioned officer by breaking his restriction to attend an off post party on or about 4 December 2004
* disobeying the lawful order of his superior commissioned officer by breaking his restriction to go to the mall on or about 5 December 2004
* disobeying the lawful order of his superior commissioned officer by breaking his restriction to go to his girlfriend's residence on or about 2 January 2005
* disobeying a lawful written order by wrongfully consuming alcohol while underage on or about 3 December 2004
* breaking restriction to attend an off post party on or about 4 December 2004
* breaking restriction to go to the mall on or about 5 December 2004
* breaking restriction to go to his girlfriend's residence on or about 2 January 2005
* violating the laws of North Carolina by wrongfully consuming alcohol while under the age of 21 (drinking under 21) on or about 3 December 2004

9.  His record contains a DD Form 2329 (Record of Trial By Summary Court-Martial) which shows, on 19 January 2005, the applicant was tried by a summary court-martial and was found guilty pursuant to his pleas of one specification of failing to go to his prescribed place of duty, three specifications of disobeying the lawful order of his superior commissioned officer, one specification of disobeying a lawful written order, three specifications of breaking restriction, and one specification of drinking under 21.  He was sentenced to 30 days of confinement. His sentence was approved on 19 January 2005.

10.  His record contains a Report of Medical History and a Report of Medical Examination, dated 21 February 2005 showing he was medically fit for military service.

11.  18 March 2005, his immediate commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c(2) due to his positive test results for cocaine and the resultant NJP under the provisions of Article 15 of the UCMJ.  His commander indicated that he intended to recommend an under other than honorable conditions characterization of service.  The applicant acknowledged receipt of the commander's intent to separate him and he was advised of the basis for the contemplated separation action, the type of discharge he could receive, and of the procedures/rights available to him.

12.  On 23 March 2005, he consulted with legal counsel and he was advised of the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights 
that were available to him.  He acknowledged that he understood he could encounter substantial prejudice in civilian life if a general discharge was issued to him.  He requested counsel, an administrative separation board (with personal appearance).  However, he agreed to waive his request to an administrative separation board if he was granted an under honorable conditions (general) characterization of service.

13.  Subsequent to the applicant's acknowledgement, his immediate commander formally initiated separation action against him under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c and recommended he receive an other than honorable conditions discharge and that his request for a waiver of the administrative separation board be disapproved.  The intermediate chain of command concurred with this recommendation.  

14.  On 10 May 2005, the separation authority disapproved his request for a waiver of the Administrative Separation Board and directed that his separation action continue and that he appear before an administrative separation board.

15.  His record contains a DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers), dated 6 June 2005, which shows an Administrative Separation Board:

	a.  found the applicant did abuse an illegal drug by using cocaine and his use of cocaine was discovered by urinalysis testing conducted on 
25 October 2004.  Furthermore, he was not suitable for further military service because the Board's findings warranted his separation from military service.

	b.  recommended he be separated from the U.S. Army because of serious misconduct with a general, under honorable conditions discharge.

16.  His record contains a memorandum issued by the Staff Judge Advocate (SJA), dated 16 August 2005 wherein the SJA stated he reviewed the administrative separation documents and proceedings against the applicant and found that the separation action met the requirements of Army Regulation 
635-200 and was legally sufficient.  The SJA found:

* all the proceedings complied with applicable legal requirements
* no appointing or substantial errors were present
* sufficient evidence supported the recommendation that the applicant  be separated with a general discharge
* the Board's recommendations were consistent with its findings

17.  On 30 August 2005, the separation authority indicated he had reviewed the applicant's separation materials, conditional waiver, and board proceedings/findings/recommendations and directed he be separated IAW Army Regulation 635-200, Paragraph 14-12c(2) (Commission of a Serious Offense – Use of Illegal Substance), with a (general) under honorable conditions discharge.
18.  On 4 October 2005, he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c(2), by reason of "Misconduct, Abuse of Illegal Drugs,"  with an under honorable conditions (general) discharge, a separation (SPD) code of JKK and an RE code of 4.  He completed 2 years, 2 months, and 11 days of creditable active service.  Additionally, he had 24 days of lost time.

19.  On 27 July 2011, the Army Discharge Review Board, after careful consideration of his military records and all other available evidence, determined he was properly and equitably discharged and denied his request for an upgrade of his character of service and RE code.

20.  Army Regulation 635-200, section III (Acts or Patterns of Misconduct), paragraph 14-12c(2), in effect at the time, states commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual of Court-Martial (MCM).  Abuse of illegal drugs is serious misconduct.  Soldiers in paragraph14-2c(2), against whom charges will not be referred to a court-martial authorized to impose a punitive discharge, will be processed for separation under paragraph 14-12c, as applicable.  The immediate and intermediate commanders will recommend separation or retention.  Recommendations will be made as to characterization of service.  The separation reason in all separations authorized by this paragraph will be "misconduct-abuse of illegal drugs."  

	b.  Paragraph 3-7a states 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.

	c.  Paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

21.  Army Regulation 635-5-1 (Separation Program Designators) states that separation codes are three-character alphabetic combinations, which identify reasons for, and types of separation from active duty.  The regulation states "JKK" is the appropriate code for individuals who were administratively discharged in accordance with Army Regulation 635-200, paragraph 14-12c(2).  The appropriate narrative reason for separation associated with this SPD code is "misconduct-drug abuse."

22.  The Separation Program Code Designator Code (SPD)/RE Code Cross-Reference Table, shows an RE code of 4 is used when a Soldier receives the SPD code of "JKK" for misconduct IAW Army Regulation 635-200, paragraph 
14-12c(2).

23.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve.  Table 3-1 includes a list of the RE codes.  

* An RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army, qualified for enlistment if 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, ineligible unless a waiver is granted
* An RE-4 applies to Soldiers separated from their last period of Service with a nonwaivable disqualification; Soldiers receiving an RE code of "4" are ineligible for enlistment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his characterization of service should be upgraded to honorable, and his narrative reason for separation should be upgraded, and his RE code of 4 should be upgraded because his discharge does not accurately reflect who he is as a person.  

2.  The applicant committed a serious offense in that he abused illegal drugs.  He tested positive for the use of cocaine.  He knowingly and wrongfully made the choice to use an illegal drug.  Testing positive for illegal drug use is a punishable offense.  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.

3.  Based on his record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Although an under other than honorable conditions discharge was normally considered appropriate for the offense committed, it appears the administrative separation board considered his overall record of service and based on the boards recommendations, the separation authority directed the issuance of a general discharge.

4.  Furthermore, his record contains a long history of NJP, a court-martial, and the use of cocaine.  Based on his record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  As such, there is an insufficient evidentiary basis for granting the applicant an honorable discharge.

5.  His record shows he was separated under the provisions of paragraph 
14-12c(2), Army Regulation 635-200 by reason of misconduct, abuse of illegal drugs.  Army regulations state an SPD code of "JKK" and the RE code of "4" are the only appropriate codes to be used for this type of discharge.  Furthermore, the appropriate narrative reason for separation associated with this SPD code is "misconduct-drug abuse."  His assigned RE code and narrative reason for separation were and remain valid.  Therefore, he is not entitled to the requested relief.

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)                                         AR20130017105





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ABCMR Record of Proceedings (cont)                                         AR20130017105



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