IN THE CASE OF:  	  

		BOARD DATE:  4 September 2014	  

		DOCKET NUMBER:  AR20140000222 


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 general discharge.  He also requests correction of the narrative reason for separation from misconduct-abuse of illegal drugs to something more favorable.

2.  The applicant states:

* he believes after requesting to be discharged for not receiving the proper mental health care, his discharge was railroaded through without his counsel
* it is true that he did do drugs and received disciplinary action prior to his discharge; however, the Army was not planning to discharge him
* he was in fact asked to stay in and he was even placed on orders to Korea; his illegal drug use was his way of coping with the Gulf War
* his squad leader had threatened to kill him when they went to combat; he mistreated him on a daily basis and did not trust him to do anything right
* his squad leader even admitted that he did not like white people and this was recognized by the unit first sergeant who moved him to another platoon
* he was unfairly shuffled around which played havoc with his mental status and psychology; no one cared or bothered to talk care of him as a result of this traumatic event 
* his career has suffered for many years as a result of this discharge; he was given no guidance regarding his separation benefits and he now wants the wrong to be made right
* he was forced to sign the discharge papers with no review; he was not allowed to read what he was signing 
* if he had been provided proper counsel and guidance, he may have been able to make better decisions regarding his separation

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 21 September 1988 and he held military occupational specialty 54B (Chemical Operations Specialist).  

3.  He reenlisted in the Regular Army on 27 June 1991.  He served in Korea from March 1989 to March 1990 and in Southwest Asia from September 1990 to March 1991. 

4.  He was awarded or authorized the Army Commendation Medal, Army Achievement Medal, National Defense Service Medal, Army Service Ribbon, Overseas Service Ribbon, Southwest Asia Service Medal with two bronze service stars, Expert Marksmanship Qualification Badge with Grenade Bar, Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), and Kuwait Liberation Medal. 

5.  He was frequently counseled by members of his chain of command for various infractions, including marginal performance, multiple instances of missing unit formations, multiple instances of being late to work, and frequently being absent from accountability formations.

6.  On 19 February 1992, he participated in a unit urinalysis and his unit sample tested positive for cocaine. 

7.  On 23 April 1992, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for wrongfully using cocaine. 

8.  On 30 April 1992, 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-wrongfully abusing drugs. He cited the applicant's multiple failures to go at the time prescribed to his appointed place of duty and failure to respond to counseling.  He recommended a general discharge under honorable conditions.

9.  In connection with this separation action, the applicant underwent a mental status evaluation at the Community Mental Health Service, Fort Bliss, TX.  The results indicated the applicant had the mental capacity to understand and participate in [chapter] proceedings, was mentally responsible, met retention standards of Army Regulation 40-501 (Standards of Medical Fitness), and was cleared for administrative actions. 

10.  On 30 April 1992, 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 also elected not to submit a statement on his own behalf.  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.

11.  Subsequent to this acknowledgement, the immediate commander initiated separation action against him under the provisions of paragraph 14-12c of Army Regulation 635-200.  The immediate commander opined that if the charges against the applicant were sent to a court-martial, there was a possibility the court-martial could have adjudged a dishonorable discharge.  His intermediate commander recommended approval with the applicant's service characterized as general under honorable conditions. 


12.  Consistent with the chain of command's recommendations and subsequent to a legal review for legal sufficiency, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of a commission of a serious offense (abuse of illegal drugs) and directed his service be characterized as under honorable conditions (general).  Accordingly, the applicant was discharged on 5 June 1992.

13.  His DD Form 214 confirms he was discharged by reason of misconduct/abuse of illegal drugs in pay grade E-2 on 5 June 1992 under the provisions of paragraph 14-12c of Army Regulation 635-200 with a character of service of under honorable conditions.  This form shows he completed 3 years, 8 months, and 15 days of creditable active service during the period under review.  Additionally, his DD Form 214 shows in:

* item 26 (Separation Code) –"JKK"
* Item 28 (Narrative Reason for Separation) – "MISCONDUCT/ABUSE OF ILLEGAL DRUGS"

14.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 

15.  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.

16.  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.

17.  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 "JKK" is the correct code for Soldiers separating under the provisions of paragraph 14-12c of Army Regulation 635-200 by reason of misconduct – abuse of illegal drugs.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant committed a serious offense in that he wrongfully abused illegal drugs.   Accordingly, his chain of command initiated separation action against him.

2.  The evidence of record further shows the applicant's discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  Based on his record of indiscipline, his service for the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an upgrade of his discharge to fully honorable.

4.  The applicant's narrative reason for separation was assigned based on the fact that he was separated under the provisions of chapter 14 of Army Regulation 635-200 for misconduct-abuse of illegal drugs.   Absent the wrongful use of drugs, there was no fundamental reason to process him for separation.  The underlying reason for his discharge was his abuse of drugs.  The only valid narrative reason for separation permitted under that paragraph is "misconduct/abuse of illegal drugs" and the appropriate separation code associated with this discharge is "JKK" which is correctly shown on his DD Form 214.

5.  With respect to his arguments: 

	a.  The applicant underwent a mental status evaluation in connection with his separation.  The results cleared him for administrative actions.  None of the "psychological" issues he now raises are corroborated or supported by any evidence.   Also contrary to his argument that he did not receive the proper mental health care, the evidence of record clearly shows none was needed.

	b.  There is no evidence in his records and he provides none to support his contention that his squad leader threatened to kill him.  There are no Military Police reports, no U.S. Army Criminal Investigation Command investigation, or even a commander's inquiry into these allegations.  

	c.  Contrary to his contention that he was given no guidance, his service record is overflowing with negative counseling statements by members of his chain of command for incidents that happened frequently such as missing formation, failing to show up on time, and other infractions.  In each case he was counseled and in each case he failed to respond to counseling.  The guidance was there.  He simply failed to respond positively. 

6.  After a comprehensive review of his case, it is clear he received the appropriate characterization of service and the appropriate narrative reason for separation.  He has shown neither an error nor an injustice and provides no evidence to support his contentions.  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)                                         AR20140000222





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ABCMR Record of Proceedings (cont)                                         AR20140000222



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