IN THE CASE OF: BOARD DATE: 10 December 2015 DOCKET NUMBER: AR20150005276 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 reenlistment eligibility (RE Code) on his reissued DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed from "3" to "1" and he requests removal of the "negative discharge code." He also requests a personal appearance. 2. The applicant states he received an honorable discharge from the U. S. Army (Army Discharge Review Board (ADRB)) and he would like his records to match his reenlistment code and discharge code. He further states: a. He went into the Shoppette one morning before physical training (PT) to buy a couple of drinks and a cigar. He got up to the counter and asked the worker to hand him a cigar and she did. He then placed the cigar in his pocket so it would not get crushed by the drinks. He then swiped his card and it was declined. He tried a couple more times and got the same result. This occurred on pay day so he wasn't sure why the card was declined. He told the worker he was going to an automated teller machine and would be right back. She said OK and he walked out, forgetting about the cigar in his pocket. When he got to his car, he received a phone call from his sergeant telling him he needed to get to PT as soon as possible. Not thinking about the cigar, he went to PT and forgot to go back to the Shoppette. This was an honest mistake and he takes full responsibility for it but he does not think this should be a career-ending mistake. b. He was accused of being in possession of a controlled substance and he was never found to be in possession of anything. He took several drug tests to prove his innocence and passed them all. He asked for the video tapes of where the incident occurred and was told they weren't working. Fingerprint results also came back negative. His career was wrongfully taken from him. c. He would like to appear before the Board to better explain the details. 3. The applicant provides: * ADRB Record of Proceedings (ROP) for Docket Number AR20140016927, dated 17 November 2014 * documents showing the results of urine and multi-panel drug tests * his reissued DD Form 214 CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 1 October 2010 and reenlisted on 14 February 2013. He held military occupational specialty 92F (Petroleum Supply Specialist). 2. The applicant received field grade nonjudicial punishment (NJP), under the provisions of Article 15 Uniform Code of Military Justice on 20 February 2014 for violating a lawful general order to wit: Secretary of the Army Policy Directive 2012-14 (Prohibited Substances (Controlled Substance Analogues)) paragraph 4, by wrongfully possessing spice on 8 November 2013, and for stealing a cigar, the property of the Army and Air Force Exchange, on 31 October 2013. On 26 February 2014 his appeal was denied. 3. His immediate commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation (AR) 635-200 (Active Duty Administrative Enlisted Separations), paragraph 14-12c for misconduct – commission of a serious offense. The commander states the applicant had received a field grade NJP for wrongfully possessing spice and stealing a cigar. 4. The applicant's acknowledgment of the commander's notification of separation is not available for review. 5. His immediate commander initiated the separation action and recommended a general discharge. 6. On 14 September 2014, the battalion commander concurred with the recommendation for separation with a general discharge. 7. The separation authority approved the separation action and directed the applicant's service be characterized as general. He was discharged accordingly. 8. On 17 November 2014, the ADRB upgraded the characterization of his service to honorable. The ADRB determined the characterization of service was too harsh based on the applicant's overall length and quality of his service and his testimony. While the ADRB determined his discharge should be upgraded to honorable, that board determined the reason for discharge was proper and equitable and voted not to change it. 9. The applicant's revised DD Form 214 shows he was discharged on 8 May 2014, with service characterized as honorable. The separation authority is shown as "AR 635-200, PARA 14-12C." The Separation Code is "JKQ" and the Reentry Code is "3." The narrative reason for the separation is shown as Misconduct, (Serious Offense). He had completed 3 years, 7 months, and 8 days of net active service this period. 10. The applicant provided: a. ADRB ROP for Docket Number AR20140016927 showing the Board granted an upgrade of his discharge to honorable but did not change the reason. b. Documents showing the negative results of urine and multi-panel drug tests. 11. Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. Army Reserve. Table 3-1 includes a list of the RA RE codes. A code of "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. A code of "3" applies to Soldiers who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable. However, those individuals are ineligible unless a waiver is granted. 12. AR 635-5-1 (Separation Program Designator Codes) prescribes the specific authorities (statutory or other directives), reasons for separating Soldiers from active duty, and the separation program designator (SPD) codes to be entered on a DD Form 214 . The regulation shows the Narrative Reason "Misconduct (Serious Offense)" and the SPD Code of "JKQ" are the correct entries for Soldiers discharged under the provisions of Army Regulation 635-200 paragraph 14-12c. 13. 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 in effect at the time of his discharge shows the SPD code of "JKQ" has a corresponding RE code of "3." 14. AR 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 a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), 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 appropriate for a Soldier discharged under this chapter. 15. AR 15-185 (Army Board for Correction of Military Records (ABCMR)) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant's request for the correction of a military record. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. Paragraph 2-11 states applicants do not have a right to a hearing before the ABCMR. The Director or an ABCMR panel may grant a formal hearing whenever justice requires. DISCUSSION AND CONCLUSIONS: 1. The applicant contends the narrative reason for separation listed on his DD Form 214 should be changed because the ADRB upgraded his discharge from general to honorable. 2. The applicant states he was never in possession of any illegal substance and passed several drug tests. He was never charged with use of illegal drugs. He received a field grade NJP for the wrongful possession of spice and for stealing a cigar from the Army and Air Force Exchange. 3. The applicant has not provided sufficient and compelling evidence to justify changing the narrative reason and RE code on his DD Form 214. The fact that drug testing proved negative does not demonstrate that he did not possess spice. 4. The narrative reason listed for his separation is appropriate considering all of the facts of the case and is correct as listed on his DD Form 214. The DD Form 214 is a summary of a Soldier’s most recent period of continuous active service. 5. In view of the foregoing, there is no basis for granting the applicant's request. 6. The applicant's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the Board. Hearings may be authorized by a panel of the Board or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant/counsel is sufficient to render a fair and equitable decision at this time. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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) AR20110025102 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005276 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1