IN THE CASE OF: BOARD DATE: 1 December 2015 DOCKET NUMBER: AR20150004797 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, in effect, correction of the narrative reason for his separation and his Reentry (RE) Code. 2. The applicant states: * he received an under honorable conditions (general) discharge but with a chapter 14; he wants to go back into the military * he has a strong passion for the Army and he needs to serve again; he was discharged more than 17 years ago * he was a model Soldier during basic and advanced training; he assumed leadership positions, received coins, and was looked up to by others * he was injured during training, but even then he did his job; he took pain killers and continued his job * he is not a drug user and would never disgrace the military and its institutions * he can be an asset to the Army in view of his military studies, knowledge of Middle East cultures, and his prior military skills * he is human and all humans make mistakes; he asks for a second chance 3. The applicant provides: * Rèsumès * Two letters of support * General Discharge Certificate * Medical consultation 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 enlisted in the Regular Army on 5 August 1997. Following completion of basic combat training at Fort Sill, OK, he was reassigned to the 1st Battalion, 56th Air Defense Artillery, Fort Bliss, TX, for completion of advanced individual training. 3. On 4 January 1998, he participated in a unit urinalysis and his urine sample tested positive for cocaine. 4. On 12 January 1998, his company commander disapproved his advancement to private two/E-2. 5. On 15 February 1998, he departed his training unit in an absent without leave status. However, he returned to military control on 17 February 1998. 6. On 21 March 1998, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), by reason of commission of a serious offense. The specific reason for the separation action was the applicant testing positive for cocaine. The immediate commander recommended an under honorable conditions discharge. 7. On 21 March 1998, 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 and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him. He did not qualify for consideration of his case by an administrative separation board and/or personal appearance before an administrative separation board. He further indicated he: * understood he could expect to encounter substantial prejudice in civilian life if a general, under honorable conditions discharge was issued to him * he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge * elected to submit a statement in his own behalf; however, his statement Is not available for review with this case 8. On 21 March 1998, and subsequent to the applicant's acknowledgement and consult with counsel, his immediate commander recommended separation action against him in accordance with chapter 14 of Army Regulation 635-200, for misconduct - commission of a serious offense. The immediate commander recommended a general discharge. 9. On 25 March 1998, the applicant's intermediate commander recommended approval of the applicant's discharge with the issuance of an under honorable conditions discharge. He opined that after reviewing the separation packet, he was convinced the Army's best interest would be served by the applicant's discharge. His serious misconduct clearly indicated a lack of self-discipline and blatant disregard to Army regulations and policies. 10. On 30 March 1998, following a legal review for legal sufficiency and consistent with the chain of command's recommendations, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct - commission of a serious offense and directed his service be characterized as under honorable conditions. Accordingly, the applicant was discharged on 3 April 1998. 11. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged under the provisions of Army Regulation 635-20, paragraph 14-12(c) with a character of service of under honorable conditions (general) by reason of misconduct. This form further confirms he completed 7 months and 26 days of creditable active service and he had 3 days of lost time. This form shows in: * Item 24 (Character of Service) - Under Honorable Conditions (General) * Item 26 (Separation Code) - JKK * Item 27 (RE Code) - 4 * Item 28 - (Narrative Reason for Separation) - Misconduct 12. 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. 13. He provides: a. Rèsumès identifying his strengths, employment history, skills, license, and certifications. b. A letter of support, dated 16 March 2015, from an individual who worked with the applicant in the past 5 years. He describes him as a positive, skillful, and professional person. c. A second letter of support, dated 16 March 2015, from a personal trainer who describes an incident that occurred at his place of employment and how the applicant responded to the incident by solely defusing a very hostile situation. d. A telephonic medical consult in relation to a right ankle injury that occurred on 21 December 1997. 14. 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 included 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 an under other than honorable conditions discharge 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 are merited by the Soldier's overall record. a. Paragraph 3-7a states 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. b. Paragraph 3-7b states that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 15. 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. The "JKK" SPD code is the correct code for Soldiers separating under paragraph 14-12(c) of Army Regulation 635-200 by reason of misconduct - drug abuse. 16. Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), in effect at the time, covered eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and U.S. Army Reserve. It stated that individuals would be assigned RE codes based on their service records or the reason for discharge prior to discharge or release from active duty. Table 3-1 included a list of Regular Army RE codes. * RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army; they are qualified for enlistment if all other criteria are met * 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 unless a waiver is granted * RE-4 applies to Soldiers separated from their last period of service with a nonwaivable disqualification 17. The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers. This cross reference table shows the SPD code and a corresponding RE code. The table in effect at the time of his discharge shows that SPD code "JKK" has a corresponding RE code of "4." DISCUSSION AND CONCLUSIONS: 1. The available evidence confirms the applicant committed a serious offense in that he wrongfully used drugs and tested positive for cocaine during a unit urinalysis. Accordingly, his chain of command initiated separation action against him. The separation authority approved the recommendation for discharge and he was ultimately discharged under Army Regulation 635-200, chapter 14, with an under honorable conditions discharge. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. 2. The evidence of record shows his discharge was appropriate because the quality of his service during his enlistment was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel. . 3. His narrative reason for separation was assigned based on his discharge under the provisions of chapter 14 of Army Regulation 635-200 due to misconduct, commission of a serious offense, abuse of drugs. Absent his misconduct by wrongfully abusing drugs, there was no fundamental reason to process him for discharge. The underlying reason for his discharge was his misconduct. The only valid narrative reason for separation permitted under that paragraph is "misconduct" and the appropriate SPD code associated with this discharge is "JKK" which are correctly shown on his DD Form 214. 4. The RE code associated with this type of discharge is RE-4. Therefore, he received the appropriate RE code associated with his 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) AR20150004797 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004797 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1