BOARD DATE: 15 August 2017 DOCKET NUMBER: AR20160000642 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x_____ ___x_____ __x___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 15 August 2017 DOCKET NUMBER: AR20160000642 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. BOARD DATE: 15 August 2017 DOCKET NUMBER: AR20160000642 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 a change of his narrative reason for separation. 2. The applicant states there is nothing to support any negative documentation recorded. 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. The applicant enlisted in the Regular Army on 8 March 2010. He served in Iraq from 7 November 2010 to 26 October 2011 in support of Operation New Dawn. 3. A DA Form 4856 (Developmental Counseling Form) dated 18 August 2011 shows the applicant's first sergeant (1SG) counseled him because a suspicious tobacco-like substance was found in his living quarters during a health and welfare inspection conducted on 8 August 2011, which was eventually turned over to the Criminal Investigation Division (CID). CID opened a formal investigation and, accordingly, the commander initiated a suspension of favorable personnel actions (flag) for adverse action. The applicant's 1SG informed him the flag would remain in effect until the completion of the CID investigation and the chain of command determined removal of the flag was appropriate. 4. On 8 February 2012, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for violating a lawful general regulation by wrongfully possessing synthetic cannabinoids. 5. On 1 March 2012, the unit commander notified him of the proposed recommendation to discharge him for misconduct for commission of a serious offense under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c. The unit commander stated the applicant possessed synthetic cannabinoids on 8 August 2011 while deployed to Iraq. The commander advised him of his rights and he acknowledged receipt of the notification. 6. On 1 March 2012, the applicant's commander formally recommended separation under the provisions of Army Regulation 635-200, paragraph 14-12c(2). The formal recommendation indicates that a report of medical examination and a report of mental status evaluation were attached to the request, though they were not available for review in this case. 7. On 6 March 2012, the applicant indicated he was afforded the opportunity to consult with counsel, who explained his rights. He elected to waive representation by counsel and to submit a statement in his own behalf. a. The applicant provided a statement from his squad leader, dated 7 March 2012. The squad leader writes that the applicant was one of the best Soldiers in the squad and provides examples of times the applicant exceeded expectations in his duty performance. b. The squad leader states that the applicant made a mistake but he feels that the total Soldier principle should apply in this case, and the Army should rehabilitate the applicant and allow him to continue to serve. 8. On 13 March 2012, the intermediate commander reviewed the applicant's separation packet and recommended approval of the separation with an under honorable conditions (general) character of service. 9. The separation authority directed the applicant's discharge for misconduct for commission of a serious offense under the provisions of Army Regulation 635-200, paragraph 14-12c(2), with service characterized as general, under honorable conditions. 10. On 30 March 2012, the Army discharged him from active duty under the provisions of Army Regulation 635-200, paragraph 14-12c(2) misconduct, (drug abuse). He completed 2 years and 23 days total active military service. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows: a. Item 24 (Character of Service) his characterization of service is listed as under honorable conditions (general). b. Item 25 (Separation Authority) he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c (2). c. Item 26 (Separation Code) he was assigned the separation designator (SPD) code of "JKK" (Misconduct, Drug Abuse). d. Item 27 (Reentry Code) he was issued a reentry code of 4. e. Item 28 (Narrative Reason for Separation) the narrative reason for his discharge is listed as misconduct, drug abuse. 8. On 10 June 2015, the Army Discharge Review Board (ADRB) reviewed the applicant's case and determined the discharge was inequitable. The ADRB found the overall length and quality of the applicant's service, to include his combat service, and the circumstances surrounding his discharge (unfounded CID [Criminal Investigation Division] Report), mitigated the discrediting entry in his service record. Accordingly, the ADRB voted to grant relief in the form of an upgrade of the characterization of service to honorable and a change to the narrative reason for separation to "Misconduct, Serious Offense." This action entailed a change of the reentry eligibility code to 3. 9. Based on the ADRB decision, he was issued a new DD Form 214 that shows the following information: a. Item 24 his characterization of service was upgraded to honorable. b. Item 25 he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c. c. Item 26 he was assigned the separation designator (SPD) code of "JKQ." d. Item 27 he was issued a reentry code of 3. d. Item 28 his narrative reason for his discharge was changed to misconduct, serious offense. 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, conviction 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 635-5-1 (SPD Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD codes to be used for these stated reasons. The regulation shows the SPD code "JKQ" as shown on the applicant's DD Form 214 specified the narrative reason for separation as involuntary release or transfer for "misconduct" and the authority for separation under this SPD is "chapter 14-12c, Army Regulation 635-200." 3. Army Regulation 635-5 (Separation Documents), in effect at the time, establishes the policies and procedures for completion and distribution of the DD Form 214. It states that item 28 will list the narrative reason for separation based on regulatory or other authority and can be checked against the cross-reference table in Army Regulation 635-5-1. DISCUSSION: 1. The evidence of record shows the applicant received an Article 15 for violating a lawful general regulation by wrongfully possessing synthetic cannabinoids. 2. His service record shows he was discharged under the provisions of Army Regulation 635-200, chapter 14, for misconduct - drug abuse with a characterization of service of general under honorable conditions. 3. On 10 June 2015, the ADRB upgraded the applicant's characterization of service from general under honorable conditions to fully honorable, changed his narrative reason for separation from "Misconduct (Drug Abuse)" to "Misconduct, Serious Offense," changed his SPD code from "JKK" to "JKQ," and upgraded his reentry code from 4 to 3. 4. In accordance with the preparation instructions for item 28 of the DD Form 214, the narrative reason for separation is taken from Army Regulation 635-5-1. His DD Form 214 was amended to reflect the appropriate narrative reason and SPD code as provided in Army Regulation 635-5-1. 5. The applicant did not provide any evidence to show his reason for separation was unjust, inequitable, or that it constituted an administrative error. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000642 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000642 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2