BOARD DATE:	  9 September 2014

		DOCKET NUMBER:  AR20140000394 


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 under honorable conditions (general) discharge and correction of his Separation Code to a different code. 

2.  The applicant states:

* he is graduating from law school next year and the term "under honorable conditions" is confusing to employers
* he was told Article 15s would be destroyed after 3 years for Soldiers below the grade of E-5
* he had already put in for a hardship discharge at the time due to family problems
* he was, in effect, a good Soldier; he was awarded the Army Commendation Medal for Soldier of the Month and/or the Year
* in the year he spent in advanced individual training, he was the color guard co-captain and Soldier of the Month; he also received an Army Achievement Medal
* he believes, given his accomplishments in the past 20 years, which he could not have done without the Army, he is deserving of an honorable discharge
* the narrative reason for separation (misconduct) contradicts the characterization of service (under honorable conditions)

3.  The applicant does not provide any evidence. 


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 27 November 1991 and he held military occupational specialty 35H (Test, Measurement, and Diagnostic Equipment Maintenance Support Specialist). 

3.  He was awarded or authorized the Army Commendation Medal, Army Achievement Medal (2nd Award), Army Service Ribbon, and the Expert Marksmanship Qualification Badge with Rifle Bar.

4.  He was assigned to Yuma Proving Ground, Yuma, AZ.  He was promoted through the ranks to specialist/E-4.

5.  On 7 February 1994, he participated in a unit urinalysis and his unit sample tested positive for cocaine.  

6.  On 21 March 1994, agents of the U.S. Army Criminal Investigation Command conducted an investigation and confirmed he wrongfully possessed and used cocaine.  

7.  On 31 March 1994, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using cocaine. 

8.  On 12 May 1994, his immediate commander notified him of his intent to initiate separation action against him for misconduct – commission of a serious offense (abuse of illegal drugs) – in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c.  The immediate commander recommended a general discharge.

9.  On 12 May 1994, he acknowledged receipt of his commander's intent to separate him.  He consulted with legal counsel and was advised of the basis for the contemplated separation action for misconduct, 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 available to him.  He acknowledged he was not entitled to consideration of his case by an administrative separation board and/or personal appearance before a board and he elected to submit a statement in his own behalf.  He also acknowledged he:

* understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him
* understood 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

10.  In his statement, he stated:

* prior to this incident he had had no adverse action taken against him and his military record was above average
* he had been the Soldier of the Quarter on two occasions and the Soldier of the Month on three occasions
* he was a co-captain of the battalion color guard during advanced individual training
* he had been awarded the Army Achievement Medal on two occasions and he received three certificates of achievement
* he believed receiving anything other than a fully honorable discharge would prejudice him

11.  Subsequent to his acknowledgement and consult with counsel, his immediate commander initiated separation action against him due to misconduct, in accordance with Army Regulation 635-200, paragraph 14-12c.  

12.  On or about 1 June 1994, the separation authority approved his discharge subsequent to a review for legal sufficiency and consistent with the chain of command's recommendations, with his service characterized as under honorable conditions (general).  Accordingly, he was discharged on 30 June 1994.

13.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged for misconduct under the provisions of Army Regulation 635-200, paragraph 14-12c, with his service characterized as under honorable conditions (general).  His DD Form 214 further shows he completed 2 years, 4 months, and 24 days of creditable active military service.  He was assigned Separation Code "JKQ." 
14.  On 1 June 2009, the Army Discharge Review Board (ADRB) reviewed his discharge but found it proper and equitable.  As such, the ADRB denied his petition for a change to the characterization of service and/or the narrative reason for separation. 

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, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it was clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

16.  Paragraph 3-7a of Army Regulation 635-200 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 "JKQ" is the correct code for Soldiers separating under the provisions of paragraph 14-12c of Army Regulation 635-200 by reason of misconduct – commission of a serious offense.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records show he committed a serious offense – he abused illegal drugs.  Accordingly, his chain of command initiated separation action against him.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

2.  His discharge was appropriate because the quality of his service was not consistent with acceptable personal conduct and performance by Army personnel.

3.  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.  The applicant's service was not sufficiently meritorious to warrant an honorable discharge.  Therefore, he is not entitled to the requested relief.

4.  The applicant's Separation Code was assigned based on the fact that he was discharged under the provisions of chapter 14 of Army Regulation 635-200 due to his misconduct, drug abuse.  Absent the drug abuse, there was no fundamental reason to process him for discharge.  The underlying reason for his discharge was his drug abuse.  The only valid narrative reason for separation permitted under that paragraph is "misconduct - drug abuse" and the appropriate Separation Code was "JKQ" which is correctly shown on his DD Form 214.

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)                                         AR20140000394





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ABCMR Record of Proceedings (cont)                                         AR20140000394



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