IN THE CASE OF:	  

		BOARD DATE:	  21 April 2015

		DOCKET NUMBER:  AR20140015439 


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 the following:

* an upgrade of his general discharge to an honorable discharge
* a change to Item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty)

2.  The applicant states he has been separated from the military for 5 years.  He has learned from his mistake and has made changes for the good.  He would like his discharge upgraded so he can pursue a better job and provide a better life for his wife and children.  He would also like to attend college so he can set a good example for his children and show that he had learned and rehabilitated himself.  He was a very good Soldier during his period of service in the Army.  He was deployed to Iraq.  When he returned from Iraq he went through a few problems and has since learned his lesson and more.  He understands his wrongdoing and takes full responsibility.  He feels bad for the problems that he may have caused, but he needs to make a start to make everything good.  He would also like to join the Army National Guard in the near future.

3.  The applicant provides copies of the following:

* Quartermaster School diploma
* three Certificates of Achievement
* Certificate of Affiliation
* Certificate of Promotion

* DA Form 638 (Recommendation for Award)
* Army Commendation Medal certificate
* Certificate of Combat Service
* DD Form 214

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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant enlisted in the U.S. Army Reserve Delayed Entry Program on 7 February 2006 and was discharged on 15 February 2006.  He enlisted in the Regular Army on 16 February 2006.  He was awarded military occupational specialty 92F (petroleum supply specialist).

3.  He provided copies of the following:

* Quartermaster School diploma he was issued for successfully completing the Petroleum Supply Specialist Course on 14 July 2006
* Certificate of Achievement he was issued for obtaining 274 points on the Army Physical Fitness Test
* Certificate of Affiliation he was issued attesting to his formal affiliation with the U.S. Army Quartermaster Corps Regiment
* Certificate of Achievement, dated 9 October 2007, he was issued for outstanding performance during the Semi-Annual Physical Fitness Test with a total score of 297 points

4.  On 20 November 2007, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for wrongfully using marijuana on or about 15 October 2007.  His punishment included a reduction to pay grade E-2 and 45 days of extra duty.  He did not appeal.


5.  He served in Iraq from 5 May 2007 through 22 July 2008.  He was promoted to pay grade E-4 on 1 July 2008.

6.  He also provided copies of the following:

* DA Form 638 recommending him for award of the Army Commendation Medal for exceptionally meritorious service from 5 May 2007 through 6 August 2008; Permanent Orders Number 193-099 approved the award on 1 March 2008
* Army Commendation Medal Certificate, dated 12 July 2008
* Certificate of Achievement he was issued for outstanding service in Iraq from May 2007 through August 2008
* Certificate of Combat Service, dated 4 August 2008, he was issued for outstanding service in Iraq

7.  On 27 July 2009, flagging action was initiated against the applicant. 

8.  On 10 August 2009, the applicant’s company commander initiated action to separate him under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c(2), for commission of a serious offense (abuse of illegal drugs) with a general discharge.  He stated the reason for the recommended action was the applicant tested positive for marijuana on 15 October 2007 and 28 April 2009 and a third sample on 30 March 2009 was found to be inconsistent with human urine.  He advised the applicant of his rights.

9.  On 10 August 2009, the applicant acknowledged receipt of the proposed separation, waived his right to counsel, and did not submit a statement in his own behalf.

10.  On 27 April 2012, the applicant's battalion commander recommended approval of the applicant's discharge with a general discharge.

11.  On 13 August 2009, the separation authority approved the applicant’s discharge and directed the issuance of a general discharge.

12.  Accordingly, he was honorably discharged in pay grade E-4 on 25 August 2009.  He was credited with completing 3 years, 6 months, and 10 days of active service.  His service was characterized as under honorable conditions, general.  His DD Form 214 lists in:

* Item 26 (Separation Code) - "JKK"

* Item 27 (Reentry (RE) Code) - "4"
* Item 28 - "Misconduct (Drug Abuse)"

13.  On 3 December 2010, the Army Discharge Review Board denied his request for an upgrade of his general discharge.

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulation stated in:

   a.  Paragraph 14-12 - Soldiers would be separated for the commission of a serious offense to include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impractical or unlikely to succeed.  The issuance of a discharge under other than honorable conditions was normally considered appropriate.  However, the separation authority could direct a general discharge if such was merited by the member's overall record.

   b.  Paragraph 14-12c(2) (Abuse of Illegal Drugs) - abuse of illegal drugs was serious misconduct.  The immediate and intermediate commanders would recommend separation or retention.  Recommendations would be made as to characterization of service. The separation reason in all separations authorized by that paragraph would be "misconduct-abuse of illegal drugs."

   c.  Paragraph 3-7a - an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

15.  Army Regulation 635-5 (Separation Documents), in effect at the time, governed the preparation of the DD Form 214.  It stated the DD Form 214 would be prepared for all personal at the time of their retirement, discharge, or release from active duty.  The regulation stated item 28 would list the reason for separation based on the regulatory or statutory authority.

16.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), in effect at the time, provided the specific authorities and reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. The SPD code of JKK was the appropriate code for Soldiers separating under the provisions of Army Regulation R 635-200, paragraph 14-12c(2) for 

misconduct due to drug abuse.  Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), Army Regulation 635-5 established an RE code of "4" for Soldiers with an SPD code of "JKK."  An RE code of "4" was applied to an individual separated from the service with a nonwaivable disqualification rendering the applicant ineligible for enlistment.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows action was initiated to separate the applicant due to misconduct by using marijuana on two occasions and possibly a third.  The separation authority approved his discharge and he was discharged accordingly on 25 August 2009.

2.  It appears his good record of service prior to the events, his accomplishments, and his service in Iraq were the basis for his receiving a general discharge and being separated in pay grade E-4 instead of an under other than honorable conditions discharge and reduction to pay grade E-1.

3.  He provided no evidence or a convincing argument to show his general discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of this discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a fully honorable discharge.

4.  His administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, he is not entitled to an upgrade of his general discharge.

5.  His desire to have his general discharge upgraded so that he can reenter military service is acknowledged.  However, the ABCMR does not grant relief solely for the purpose of making an applicant qualified for reentry.

6.  With regard to amendment of item 28, the evidence shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c(2), in effect at the time, with an SPD of "JKK," RE code of "4," and a narrative reason of Misconduct (Drug Abuse).  The narrative reason listed in item 28 of his DD Form 214 is correct.  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)                                         AR20140015439





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140015439



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1