BOARD DATE:	  25 August 2015

		DOCKET NUMBER:  AR20140020258 


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 reconsideration of his prior request for correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to upgrade his reentry eligibility (RE) code.  As new issues, he requests amendment of the characterization of his discharge, the narrative reason for his discharge, and his separation program designator (SPD) code.

2.  The applicant states:

* as a young man he had a lapse in judgment during a difficult time in his life
* he foolishly used a controlled substance which was the biggest mistake he ever made in his life
* he had just lost his brother during Operation Just Cause in Panama and a few months later he lost his grandmother
* he fell into despair and used poor judgment
* that was the first time he ever used any controlled substance and he was not himself at the time
* he received nonjudicial punishment (NJP), 30 days of restriction, 30 days of extra duty, and demotion in rank as a result
* a year later, on the anniversary of his brother's passing, he had a few drinks and was cited with driving while ability impaired which is a minor driving infraction and nothing major like driving while intoxicated (DWI) or driving while under the influence which are criminal misdemeanors
* he paid a fine and took a defensive driving course as a result
* he and his new first sergeant did not get along
* his new first sergeant reviewed his record and saw that he had previously received NJP for illicit drug use for which he publicly reproached him on several occasions, leading to a heated exchange of words between the two
* his first sergeant then began the discharge process against him despite the fact that the drug infraction had happened over a year prior and he had already been disciplined for it
* this was a total abuse of power from a vengeful man which ended up destroying his military career
* he always served with distinction and doesn't understand how this could have happened
* since leaving the military he trained and educated himself in many different disciplines and earned two degrees
* he has never lost faith that he would one day be granted the opportunity to serve his country again
* even several of our Presidents have used controlled substances and were given the opportunity to govern the nation, but his career was ruined after his one-time use which occurred under duress
* he requests one last opportunity to regain his honor and respect

3.  The applicant provides:

* DD Form 214
* excerpt from Army Regulation 601-210 (Active and Reserve Components Enlistment Program)
* list of Army age-related policies
* resume
* University of Central Florida Bachelor of Applied Science certificate, dated 1 May 2014
* Valencia College Computer Programming technical certificate, dated 10 January 2012
* Valencia College Associate in Arts certificate, dated 29 April 2012
* Valencia College Computer Programming Specialist technical certificate, dated 12 May 2011
* Valencia College Computer Programming Specialist with specialization in Computer Programming, dated 12 May 2011
* Valencia College Computer Programming with specialization in Computer Programming certificate, dated 16 August 2011
* Valencia College Computer Programming Specialist with specialization in Web Development technical certificate, dated 16 August 2011
* Valencia College Associate in Science, Computer Programming, and Analysis technical certificate, dated 18 December 2011
* Penn Foster Career School Gunsmith career diploma and transcript, dated 12 October 2006
* Municipal Training Center Medical Assistant certificate, dated 12 August 1994
* Municipal Training Center Electrocardiogram Technician certificate, dated 12 August 1994
* Municipal Training Center Phlebotomist certificate, dated 12 August 1994

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR2000036086 on 7 September 2000.

2.  After nearly 4 years of prior Army National Guard service, the applicant enlisted in the Regular Army on 23 May 1989.

3.  On 29 January 1990, he accepted NJP under the provisions of Article 15 of the Uniform Code of Military Justice for the use of a controlled substance, cocaine, detected by biochemical testing of a urine sample submitted to military authorities on 28  November 1989.

4.  His record contains a DA Form 4856 (General Counseling Form), dated 21 January 1991, wherein he was counseled for receiving a citation for DWI on 20 January 1991.

5.  On 25 February 1991, the applicant's immediate commander initiated discharge action against him for misconduct under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14c.  The applicant was advised by consulting counsel of the basis for the contemplated separation action for misconduct – use of illegal drugs, the type of discharge he could receive, the possible effects of this discharge, and the procedures and rights available to him.  On 25 February 1991, he acknowledged receipt of the recommendation for elimination.  On 12 March 1991, he submitted statements in his own behalf, stating the incident involving the substance abuse stemmed from the loss of his brother killed in a Blackhawk accident in Panama.  On the night of the DWI incident he had been drinking at home and drove to meet a friend in need.  To avoid an accident when the car in front of him swerved, he swerved to the side of the road and became stuck in the snow and then walked to the police station to inform them of the incident.  He waived his right to an administrative separation board.  He acknowledged he understood he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him and that he may be ineligible for many or all benefits as a veteran under both Federal and State laws.

6.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 24 January 1991, shows the applicant was mentally responsible and had the mental capacity to understand and participate in proceedings.

7.  On 29 March 1991, the approval authority, the Commander, 10th Division Artillery, 10th Mountain Division (Light Infantry), approved the recommended discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct.  He directed the issuance of a general discharge under honorable conditions.

8.  On 16 April 1991, the applicant was discharged under honorable conditions.  His DD Form 214 shows he completed 1 year, 10 months, and 48 days of net active service during this period.

9.  On 6 June 1994, the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.  The board determined the characterization of his service was proper and equitable and denied his request.  The board did, however, determine his narrative reason for separation was inequitable and voted to change the reason from "misconduct – abuse of illegal drugs" to "misconduct."  Accordingly, a new DD Form 214 was issued to the applicant on 23 January 1997 wherein the narrative reason for separation was listed as misconduct, the SPD code was JKK, and the RE code was 3.

10.  The applicant applied to the Army Board for Correction of Military Records for an upgrade of his RE code to enable him to enlist in the Regular Army.  On 7 September 2000, his request was denied by the Board on the basis of his failure to satisfactorily show his record was in error or unjust.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It states individuals will be assigned RE codes based on their service records or the reason for discharge prior to discharge or release from active duty.

	a.  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 is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally considered appropriate for a Soldier discharged under this chapter.

	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.

12.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard.  Table 3-1 (U.S. Army Reentry Eligibility Codes) includes a list of RE codes.

	a.  RE code 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 code 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 unless a waiver is granted.

13.  Army Regulation 635-5-1 (SPD Codes) provides the specific reasons for separating Soldiers from active duty and the associated SPD codes to be entered on the DD Form 214.  It states that SPD code JKK is the appropriate code to assign Soldiers separated under the provisions of Army Regulation 
635-200, chapter 14, due to misconduct (drug abuse).  SPD code JKM is the appropriate code to assign Soldiers separated under the provisions of Army Regulation 635-200, chapter 14, due to other types of misconduct not appropriately described by the other narrative reasons associated with chapter 14 discharges (e.g., pattern of misconduct, civil conviction, Absent without Leave, desertion, drug abuse, sexual perversion, minor infractions, serious offense or Anthrax refusal).  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 JKK or JKM.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for upgrade of his general discharge under honorable conditions and to change his SPD code, RE code, and narrative reason for separation was carefully considered.

2.  The available evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  His records reflect his acceptance of NJP under the UCMJ for the use of illegal drugs as well as a general counseling statement for receipt of a DWI citation.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.

4.  Records indicate the applicant's narrative reason for separation was already changed as a matter of equity from "misconduct – abuse of illegal drugs" to "misconduct."

5.  As the applicant's narrative reason for separation was previously changed to read "Misconduct" in lieu of "misconduct – abuse of illegal drugs", the continued use of the SPD code JKK which refers to drug abuse is not appropriate.  Therefore, the applicant's SPD code should be amended to read JKM, the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 14, for misconduct (other).

6.  The RE code of 3, establishing his enlistment/reenlistment ineligibility without a waiver, was correctly entered on his DD Form 214 in accordance with governing regulations.  There is no apparent basis for removal or waiver of the applicant's disqualification that established the basis for the RE code of 3.  The applicant's desire to continue in the service to his country is noted; however, there are no provisions authorizing the change of an RE code for this purpose.

7.  The ABCMR does not establish eligibility for entry into the Army nor does it correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant is advised to contact a local recruiter should he desire to reenter military service.  A local recruiter can best advise him on his eligibility for returning to military service, the current needs of the Army, and may process any required enlistment waivers for the applicant's RE code of 3 if so eligible.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x_____  ___x_____  ____x_  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR2000036086, dated 7 September 2000.

2.  With regard to the new issues, the Board determined the evidence presented is insufficient to demonstrate the existence of a probable error or injustice pertaining to the characterization of his discharge and the narrative reason for his discharge.  However, the Board further determined the evidence presented is sufficient to demonstrate the existence of a probable error or injustice and warrants a portion of the requested relief pertaining to the SPD Code.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the SPD code on his DD Form 214 to read JKM.



      ____________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)                                         AR20140020258



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ABCMR Record of Proceedings (cont)                                         AR20140020258



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