BOARD DATE: 14 April 2016 DOCKET NUMBER: AR20150010492 BOARD VOTE: ___x______ __x_____ __x__ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 14 April 2016 DOCKET NUMBER: AR20150010492 BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing on her DD Form 214 the following entries in: * Item 25 (Separation Authority): Army Regulation 635-200, paragraph 14-12b * Item 26 (Separation Code): JKA * Item 27 (Reentry Code): 3 * Item 28 (Narrative Reason for Separation): Pattern of Misconduct ____________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. BOARD DATE: 14 April 2016 DOCKET NUMBER: AR20150010492 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 her DD Form 214 (Certificate of Release or Discharge from Active Duty) by changing her separation program designator (SPD) code of JKK and reentry (RE) code of 4 to something acceptable for reentering military service. 2. The applicant states she had her wisdom teeth pulled and was taking Tylenol with codeine. This is why she tested positive for drug use. Her unit saw her prescription. She did not use recreational drugs while in the military. She was given the choice of staying in with a different job or getting out. The people she hung around with sometimes got into trouble, but she had nothing to do with it. They tried to pin all kind of things on her, but she was innocent. She was a good Soldier. 3. The applicant provides no additional documents. 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. On 9 August 1999, the applicant enlisted in the Regular Army. She completed her initial training as a military policeman. 3. On 23 October 2000, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for the wrongful use of marijuana on diverse occasions between 1 April and 25 August 2000. 4. On 22 November 2000, at a mental status evaluation, the applicant's behavior was normal. She was fully alert and oriented and displayed an unremarkable mood. Her thinking was linear, her thought content normal and her memory good. There was no suicidal ideation. The applicant was mentally responsible. She was able to distinguish right from wrong and to adhere to the right and was capable of participating in the separation processing. 5. On 27 December 2000, the applicant’s commander recommended separation from the service under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12b, for a pattern of misconduct. He cited her failure to report, failure to obey a lawful order, and her wrongful use of marijuana. Despite numerous attempts towards rehabilitation, she failed to correct her conduct. 6. The applicant declined the opportunity to consult with appointed counsel, military counsel of her choice, or with civilian counsel at her own expense. 7. The appropriate separation authority approved the recommendation and directed she receive a general discharge. 8. Accordingly, on 26 January 2001, the applicant was discharged under honorable conditions. She completed 1 year, 1 month, and 26 days of creditable active duty service. Her DD Form 214 shows the following in: * Item 25 (Separation Authority): Army Regulation 635-200, paragraph 14-12C(2) * Item 26 (Separation Code): JKK * Item 27 (Reentry Code): 4 * Item 28 (Narrative Reason for Separation): Misconduct 9. There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of her discharge within that board’s 15-year statute of limitations. REFERENCES: 1. 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 that could result in a punitive discharge, convictions by civil authorities, desertion or absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. 2. Army Regulation 601-210 prescribes eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the Army Reserve. Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment and includes a list of armed forces RE Codes including RA RE codes. RE- 3 applies to persons separated from their last period of service with a waivable disqualification. 3. Army Regulation 635-5-1 (SPD Codes) provides 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 JKA was the appropriate code for the applicant based upon the guidance provided in Army Regulation 635-5-1 for Soldiers separating under the provisions of Army Regulation 635-200, paragraph 14-12b), for a pattern of misconduct. Additionally, the SPD/RE Code Cross Reference Table establishes RE-3 as the proper RE code to assign to Soldiers for this reason. DISCUSSION: 1. The applicant contends that her DD Form 214 should be corrected by changing her SPD code of JKK and RE code of 4 to something acceptable for reentering military service. 2. The available evidence shows the commander recommended the applicant’s separation based on a pattern of misconduct under the authority of AR 635-200, paragraph 14-12b. This recommendation was approved by the appropriate authority with no changes to the recommended reason or authority. 3. However, the governing regulations show the correct SPD code, RE code, and narrative reason for a separation under AR 635-200, paragraph 14-12b is JKA, RE-3, and a pattern of misconduct, respectively. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150010492 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150010492 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2