IN THE CASE OF:	 

		BOARD DATE:	  5 November 2014

		DOCKET NUMBER:  AR20140005458 


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:

* his general discharge be upgraded to honorable
* correction of item 12fc (Net Active Service This Period) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he completed 2 years of net active service vice 1 year, 11 months, and 28 days
* correction of item 27 (Reentry (RE) Code) of his DD Form 214 to show his RE code as 1 vice 3

2.  The applicant states:

	a.  His discharge was improper because he was never convicted in a civilian court and he was not given the opportunity to prove his innocence.  His arrest was listed as the primary reason to begin his discharge proceedings.  He fought for more than 1 year and a half in civil court just to have his case dismissed.  His arrest was a case of being in the wrong place at the wrong time.

	b.  Before his arrest, he was a model Soldier.  He was arrested on 15 March 2012 and released to his unit on 17 March 2012 and went right back to his military duties.  He had a different commander at that time.  His previous commander, Captain (CPT) P____, knew of his honesty and integrity.   In March 2012, he was looking forward to deploying to Afghanistan; however, instead he was pulled out of the field.  He spoke with legal counsel and they agreed something was wrong with his arrest.
	c.  In April 2012, along with his civil fight, he started a new fight with the Army to remain a Soldier.  The new CPT came in and he was labeled a disgrace to the Army.  According to him, he was guilty without even going to trial.  May and June 2012 became unreal.  He lost his income, a place to live, and his truck and car.  Everything he worked hard for was pushed aside.  During this time, his son was fighting for his life as his kidney was shutting down and he couldn't help him.  His civil court case ended up being dismissed.  The judge told the prosecutor he found him (the applicant) to be a more credible person.

	d.  He would like his discharge upgraded.  In addition, his DD Form 214 shorted him by two days and cost him his benefits.  With a change in his RE code he has the hope of going back in the Army to finish what he started.  The Army was his life, he never tested positive for drugs on a urine test, and his fellow Soldiers looked up to him. 

3.  The applicant provides his DD Form 214 and a court order.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 14 June 2010.  On 26 October 2010, he was assigned to the 2nd Battalion, 3rd Field Artillery Regiment, Fort Bliss, TX.

2.  On 15 March 2012, he was arrested by an officer with the El Paso County Sheriff's Office and placed in confinement at the El Paso County Sheriff's Office, El Paso, TX.  The arresting officer's incident/investigation report, dated 15 March 2012, in part, stated:

	a.  At 0052 hours, 15 March 2012, he was dispatched to an intersection in reference to a motor vehicle accident.  As he was talking to the driver of a grey pickup truck (the applicant), he was very talkative and appeared to be in distress from a minor accident.  He was the only occupant of the pickup truck.  He (the officer) asked for his insurance [card] and was told it was in the center console of the truck.  The officer asked if it was okay for him to look for the insurance.  The driver advised it was and continued to speak with the other driver.  He (the officer) attempted to look for the insurance card and observed a clear, plastic bag filled with white powder that he believed to be cocaine.  He field-tested the powder and it tested positive for cocaine.  

	b.  He verbally advised (the applicant) of his Miranda Warning and placed him under arrest.  He transported him to the station, weighed the powdery substance, and was pressing criminal charges against him for the possession of a controlled substance, penalty group 1.
3.  The unit was notified of the applicant's arrest and completed a DA Form 4187 (Personnel Action) on 15 March 2012 to change his duty status from present for duty to confinement by the El Paso County Sherriff's Office, El Paso, TX.  

4.  His record contains a second DA Form 4178, dated 19 March 2012, changing his duty status from confinement to present for duty as he had been released from the El Paso County Detention Facility and returned to military control.  

5.  On 14 May 2012, his immediate commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, for the commission of a serious offense - being arrested for possession of cocaine.  

6.  On 14 May 2012, he acknowledged receipt of the commander's notification.  On 15 May 2012, he consulted with legal counsel and he was advised of the basis for the contemplated separation action for commission of a serious offense, the type of discharge he could receive, its effect on further enlistment or reenlistment, the possible effects of this discharge, and the procedures and rights available to him.  He declined to submit a statement on his own behalf.

7.  On 22 May 2012, his senior commander recommended approval of the discharge action and recommended his service be characterized as general, under honorable conditions.

8.  On 22 May 2012, the separation authority approved his discharge for misconduct with a general discharge.  On 15 June 2012, he was discharged accordingly.

9.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct (serious offense), with an under honorable conditions (general) characterization of service.  His DD Form214 also shows the following entries:

* item 12c (Net Active Service) he completed 1 year, 11 months, and 28 days
* item 26 (Separation Code) - JKQ
* item 27 (RE Code) - 3
* item 29 (Dates of Time Lost During this Period) - Under [Title] 10 U.S. Code (USC) 972, 15 to 18 March 2012 (4 days) 

10.  On 15 February 2013, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge and determined he was both properly and equitably discharged.  
11.  The applicant provides a State of Texas Judicial District Court Order wherein the Assistant District Attorney presented a motion to dismiss the case against the applicant because the evidence had been suppressed.  On 11 October 2013, the motion was granted and the case dismissed.

12.  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 abuse of illegal drugs.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter (emphasis added).  

13.  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.

14.  Army Regulation 635-5-1 (Separation Program Designator (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 the SPD code of JKQ is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph14-12c for misconduct.  The SPD/RE Code Cross Reference Table stipulates that an RE code of 3 will be assigned to members separated under these provisions with an SPD code of JKQ.

15.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing in the Regular Army, U.S. Army Reserve, and Army National Guard.  Table 3-1 shows the RE codes and states:

	a.  RE-1 applies to Soldiers completing their terms 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-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible for enlistment or reenlistment unless a waiver is granted.

16.  Army Regulation 635-5 (Separation Documents), in effect at the time, it established standardized policy for the preparation of the DD Form 214.  It stated, in part, in item 12 (Record of Service) use extreme care in completing this block since post-service benefits, final pay, retirement credit, and so forth are based on this information.

	a.  In item 12a (Date Entered Active Duty (AD) this Period) enter the beginning date of the continuous period of AD for issuance of this DD Form 214, for which a DD Form 214 was not previously issued.

	b.  In item 12b (Separation Date this Period) enter the Soldier's transition date.  This date may not be the contractual date if Soldier is separated early, voluntarily extends, or is retained on AD for the convenience of the Government.

	c.  In item 12c enter the amount of service this period, computed by subtracting item 12a from 12 b.  Lost time under Title 10 USC 972, if any, is deducted from the total amount of net active service.  Such time will be identified in item 29 of the DD Form 214. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant committed a serious offense when he was arrested for the possession of an illegal substance, cocaine.  Accordingly, his immediate commander initiated separation action against him.  

2.  Although the civil charges against him may have been dismissed on a technicality, it doesn't negate the fact that he was arrested and charged with possession of cocaine.  

3.  His separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met.  The type of discharge directed and the reason for discharge were appropriate considering all the facts of the case.

4.  The evidence of record shows he entered active duty 14 June 2010 and was discharged on 15 June 2012, a period of 2 years and 2 days.  However, he had 4 days of lost time due to being confined by civil authorities (15 March 2012 to the day prior to his return to his unit on 19 March 2012) and lost time is subtracted from the time served.  Therefore, his net active service is properly shown as 1 year, 11 months, and 28 days. 

5.  He was separated under the provisions of Army Regulation 635-200, paragraph 14-12c, with an SPD code of JKQ.  Based on his separation action under this provision, he was appropriately assigned an RE code of 3 at the time of his discharge.  An RE code of 3 is the correct code for Soldiers separated by reason of misconduct; no other RE code is authorized.

6.  It appears the approving authority took the applicant's complete record into consideration when he directed he be given a general discharge vice an under other than honorable conditions discharge.

7.  Based on his record of misconduct, his conduct did not meet the standards of acceptable conduct of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

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)                                         AR20140005458





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ABCMR Record of Proceedings (cont)                                         AR20140005458



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