RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 23 November 2005 DOCKET NUMBER: AR20050001894 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. Mr. Carl W. S. Chun Director Ms. Joyce A. Wright Analyst The following members, a quorum, were present: Mr. John Slone Chairperson Mr. Patrick H. McGann, Jr. Member Mr. Larry J. Olson Member The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests that his Reentry (RE) Code "4" be changed to RE "3." 2. The applicant states he was honorably discharged with a separation program designator (SPD) Code of "JKK." This separation code, the applicant states can only be given a RE Code of "3" according to regulation. He admitted to experimenting with cannabis and never came up positive on any drug screen. 3. The applicant's request was forwarded for action under cover of a letter to the Board from his Member of Congress (MOC). In his letter to the MOC, he stated that, during that period, he was questioned about marijuana use that had come to his battalion commander's attention through a female civilian whom obviously had it out for him. When questioned, he told the truth and said that he had indeed tried it several months before, but that was it. He was immediately given a urinalysis, which of course came back negative. During this period, a new battalion commander and command sergeant major took over the unit and knew nothing about him nor seemed interested in all of his accomplishments. 4. The applicant told his MOC that, although many officers and non-commissioned officers spoke to the new battalion commander in his behalf, the applicant felt that the battalion commander was determined to discharge him and to discharge him dishonorably. He [the applicant] informed the battalion commander there was no proof of his drug use and no type of punishment could be administered. The applicant related how he had sought assistance from him [the Congressman]. The battalion commander was determined to ruin his stellar career. 5. The applicant stated the Adjutant General later conducted an investigation of the unit, especially the battalion commander. His commander later inquired of the applicant why he did what he did by going to his Congressman. He informed his battalion commander that he would not listen to him about the level of discharge he wanted to give him and that he knew he was correct in saying that he could not dishonorably discharge him. The battalion commander later informed the applicant that he would do everything possible to ensure that he would never serve in the military again. According to the applicant, he did just that. He issued him an SPD and RE Code that was for Soldiers who had received Article 15’s, letters of reprimands, downgraded in rank, loss of pay or even prison time; none of which he had received. 6. He also states that in this time of need for the military, he is attempting to re-enter the military. He interviewed with the command of the 128th Infantry Regiment. They want him in their unit as much as he wants to be a part of it. His outstanding credentials as a leader and a follower mean nothing with the codes that were issued to him. His anger about being investigated because of his own ignorance is keeping an outstanding Soldier out of where he belongs; besides his comrades in war and peace. Here is one, he states, that is qualified beyond many of his peers and wishes nothing more than to serve next to his comrades. He does not think that he is more special or deserves special treatment; however, he has tried the process of changing his military records and the process did not work and took over a year to tell him that they could not do it. He found that not acceptable. He states he needs to get in front of somebody who will listen and can do something about it. He needs to be heard. They need to hear him in person, not on paper, and that paper did not seem to cut it. He has already proven that he is wanted and needed by talking to senior officials of the 128th Infantry Regiment. He asks his MOC for assistance one more time. The military needs him and he needs it. He served honorably once before and will serve honorably again. CONSIDERATION OF EVIDENCE: 1. The applicant is requesting correction of an alleged error which occurred on 30 August 1996, the date of his discharge. The application submitted in this case is dated 9 February 2005. 2. 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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file. 3. The applicant’s military records show he enlisted in the North Dakota Army National Guard (NDARNG) on 1 March 1990, as a combat engineer (12B), in the pay grade of E-3, for a period of 8 years. He was ordered to active duty for training (ADT) on 24 May 1990 and was released from ADT on 30 August 1990. He continued to serve in the NDARNG until he was honorably discharged on 8 April 1991, so that he could enlist in the Regular Army (RA). 4. The applicant enlisted in the RA on 9 April 1991, as a signal support systems specialist (31U), for a period of 4 years, with an established expiration of term of service (ETS) of 8 April 1995. He was promoted to sergeant (SGT/E-5) effective 1 January 1994. He reenlisted in the RA on 14 December 1994 for a period of 2 years with an established ETS of 13 December 1996. 5. The applicant underwent a separation medical examination on 30 July 1996, and was found qualified for separation. 6. The applicant underwent a mental status evaluation on 31 July 1996, which determined that he possessed sufficient mental capacity to understand and participate in administrative or judicial proceedings. It indicated that he was alert, oriented, and that his thought process was clear. The remarks sections of his evaluation indicated that he was evaluated at the commander's request and was psychiatrically cleared for any administrative action deemed appropriate by his command. 7. On 1 August 1996, the applicant was counseled by his first sergeant. The first sergeant told him he was aware that he had informed the commander that he had used cocaine during the time period of February through April 1996. The first sergeant informed him that illegally using drugs was a violation of the Uniform Code of Military Justice (UCMJ), that it could result in his separation from the service for misconduct, and that use of drugs would not be tolerated by the command. 8. On 9 August 1996, the applicant consulted with counsel who prepared a memorandum for the battalion commander, 2nd Battalion, 75th Ranger Regiment, Subject: Separation pursuant to Army Regulation 635-200, chapter 14. He stated he was writing this memorandum in his capacity as counsel for the applicant, a Soldier under his command. He stated the battalion commander had initiated paperwork to separate the applicant from the military pursuant to Army Regulation 635-200, chapter 14. He stated the applicant had requested separation pursuant to Army Regulation 635-200, chapter 16, for failure to overcome a locally imposed bar to reenlistment, which is unavailable for review. 9. The applicant's attorney stated that, as counsel with an obligation to make certain that the command of his client abides by all of the appropriate regulations separating him from the military, it was his opinion a separation under chapter 14 (major misconduct) would be a violation of Army Regulation 600-85 (ADAPC-Army's Alcohol and Drug Abuse Prevention and Control Program (ADAPCP). Counsel stated that all of the information the applicant’s command had regarding drug use was "limited use" evidence, as defined in paragraph 6-4, of Army Regulation 600-85. The applicant self "referred" himself numerous times, once to his command and several times to the unit chaplain. The command and the chaplain failed to refer the applicant to ADAPCP, which was required by Army Regulation 600-85, Chapter 3, Paragraphs 3-7 and 3-8. 10. Counsel also stated that Army Regulation 635-200 does not specifically provide for separation under the major misconduct chapter, using solely limited use information. However, such a separation would directly conflict with the ADAPCP policies, which work in conjunction with the separation regulation. Separating the applicant pursuant to the major misconduct chapter would be contrary to several Army regulations and policies. He concluded by stating that the best way in which to "protect the record" in this case from future action would be to allow the applicant to leave the military under chapter 16, of Army Regulation 635-200 (failure to overcome a bar to reenlistment). 11. On 12 August 1996, the applicant’s commander notified the applicant that he was initiating action to separate him from the service under the provisions of Army regulation 635-200, chapter 14-12c(2), for commission of a serious offense. He based his reason on the applicant’s wrongful use of cocaine between the dates of 1 February through 31 March 1996. 12. The applicant’s records contain no derogatory information. 13. On 14 August 1996, the applicant consulted with counsel and waived his rights. He elected not to submit a statement in his own behalf. 14. On that same day, the commander submitted his recommendation for the applicant’s discharge to the battalion commander, a lieutenant colonel (LTC/O-5), of the 2nd Battalion, 75th Ranger Regiment, then to the Commander, I Corps & Fort Lewis. The applicant’s discharge was approved on 19 August 1996 by the battalion commander. He was issued an honorable discharge. The applicant was discharged on 30 August 1996. He had a total of 5 years, 7 months, and 29 days of creditable service. He was issued an RE Code of "4" and a SPD Code of "JKK." 15. Item 12b (Separation Date This Period), of his DD Form 214, dated 30 August 1996, shows the entry "1996 08 30" (30 August 1996) as his separation date. 16. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Section III of the regulation pertains to authority to order and accomplish separation. Paragraph 1-19 cover the authority to order separation prior to expiration of term of service (ETS). Subparagraph 1-19c states, in pertinent part, that commanders who are special court-martial convening authorities are authorized to order the separation or release from active duty (AD) or ADT under chapter 14 when discharge under other than honorable conditions is not warranted and the notification procedure is used. An honorable discharge may be ordered only when the commander exercising general court-martial jurisdiction has authorized the separation. 17. Chapter 5 of that regulation provides authorization for separation for the convenience of the government. Paragraph 5-1 states that Soldiers will be awarded a character of service of honorable, under honorable conditions, or an uncharacterized description of service if in entry-level status. 19. Paragraph 5-3 states that separation under this paragraph is the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. It is used when no other provision of this regulation applies, and early separation is clearly in the best interest of the Army. Separation under this paragraph are effective if approved in writing by the Secretary of the Army or the Secretary's approved designee as announced in updated memorandums. The discharge or release of any enlisted member of the Army for the convenience of the government will be at the Secretary’s discretion. 19. 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, 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. 20. Paragraph 14-12c(2) provides for separation for commission of a serious offense such as abuse of illegal drugs.   21. Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes based on their service records or the reason for discharge. Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve. Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment. That chapter includes a list of Armed Forces RE codes, including RA RE codes. 22. RE-4 applies to persons not qualified for continued service by virtue of being separated from the service with non-waivable disqualifications such as misconduct. 23. RE-3 applies to persons not qualified for continued Army Service, but the disqualification is waivable. Certain persons who have received nonjudicial punishment are also disqualified, as are persons with bars to reenlistment, and those discharged under the provisions of chapter 9, 10, 13, 14, and 16 of Army Regulation 635-200.  24. RE-1 applies to persons completing their term of service (ETS) who are considered qualified to reenter the Army. 25. Army Regulation 635-5-1, in effect at that time, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons. The regulation shows that the separation program designator (SPD) "JKK", as shown on the applicant’s DD Form 214, is appropriate for discharge when the narrative reason for discharge is "misconduct, commission of a serious offense, abuse of illegal drugs" and that the authority for discharge under this SPD is "Army Regulation 635-200, chapter 14, paragraph 14-12c(2)." The SPD code of "JFF" is appropriate for involuntary release from active duty when the narrative reason for separation is "Secretarial Plenary Authority." 26. The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers separated for cause. It also shows the SPD code with a corresponding RE code and states that more than one RE code could apply. The Soldier’s file and other pertinent documents must be reviewed in order to make a final determination. The SPD code of "JKK" has a corresponding RE code of "4" that is determined by appropriate authorities directing the change. The SPD Code of "JFF" has a corresponding RE Code that is determined by appropriate authorities directing the change. 27. Army Regulation 600-85 prescribes policies and procedures needed to implement, operate, and evaluate the Army Alcohol and Drug Abuse Prevention and Control Program (ADAPCP). It states, in pertinent part, that the applicant’s rehabilitation progress will provide the commander with an overall impression of the applicant’s progress in the ADAPCP. It also states that when the commander determines that duty performance and progress is unsatisfactory and cannot justify further rehabilitation efforts in a military environment, discharge from the military service will be affected. It further states that ADAPCP services would continue to be provided until the client is separated and that enlisted soldiers identified as illegally abusing drugs would be processed for separation in accordance with AR 635-200. 28. Paragraph 3-7 pertains to responsibilities of commanders for referral. It states that when individuals are identified, voluntarily or involuntarily, as possible alcohol or other drug abuser, their unit commander or designated representative will: (a) advise them of their rights under Article 15, UCMJ. Use of DA Form 3881 (Rights Warning Procedure/Waiver Certificate) is strongly recommended; (b) explain the provisions of the limited use policy; (c) interview them and inform them of the evidence; (d) give them the opportunity to provide additional evidence, including information on drug sources, if they desire (However, such disclosure is strictly voluntary and will not be made a requirement for or any part of treatment or rehabilitation); and (e) collect any illegal drugs or drug paraphernalia that the Soldier voluntarily relinquishes and turn them over to the local Provost Marshal. 29. The unit commander will refer individuals suspected or identified as alcohol and/or other drug abusers, including those identified through urinalysis and blood alcohol tests. All individual with urine positives will be referred to the ADAPCP for initial screening. Medical evaluation by a physician is required unless the urine positive is for THC alone. Soldiers with blood alcohol levels of .05 percent or above while on duty will be referred to the ADAPCP for screening and evaluation. Soldiers who are referred by the unit commander for an initial interview, regardless of the means of identification, will be referred using the Military Client Referral and Screening Record. This document must be signed by the commander. The initial screening interview will be accomplished by the ADAPCP staff at the earliest opportunity (not to exceed 4 working days) with emergency referrals receiving priority. 30. A limited use policy that restricts the consequences of the Soldier's involvement in the ADAPCP is described in chapter 6, that the commander must sign. 31. Paragraph 3-8 pertains to self referrals. It states that the clinical staff will conduct an initial interview with all eligible personnel who self-refer to the ADAPCP counseling center for assistance. During the initial interview, the clinician will advise soldiers of their unit commander's role in the rehabilitation process, and provide information about the ADAPCP. The commander will be part of the rehabilitation program and will be directly involved in the decision of whether rehabilitation is required. The commander will also provide recommendations for the appropriate rehabilitation track and establish standards of behavior and goals for evaluation of the Soldier's progress in rehabilitation and in the unit. The ADAPCP staff will contact the commander and coordinate the Soldier's referral, if ADAPCP services are rendered. After coordination with the Soldier's commander, the referral is processed in the same manner as any other command referral; however, the type of referral will be annotated on the ADAPCP Military Client Referral and Screening Record as a self referral. 32. Paragraph 6-4 pertains to the limited use policy. It states in pertinent part, that this policy prohibits the use of the following evidence against a Soldier in actions under the UCMJ or on the issue of characterization of service in separation proceedings: (1) mandatory urine or alcohol breath test results taken to determine a Soldier's fitness for duty and the need for counseling, rehabilitation, or other medical treatment or in conjunction with a Soldier's participation in ADAPCP; (2) a Soldier's self-referral to ADAPCP; and (3) information concerning drug or alcohol abuse occurring prior to the date of initial referral to ADAPCP. DISCUSSION AND CONCLUSIONS: 1. The applicant stated that he was questioned about the use of marijuana during the period in question and he told the truth that he indeed tried it several months before. He was immediately given a urinalysis which came back negative. His new battalion commander took over and knew nothing about and was not interested in his accomplishments. 2. The applicant felt that the battalion commander was determined to discharge him and to discharge him dishonorably. He informed him of this and that there was no proof of drug use and that no type of punishment could be administered. He sought assistance from his Congressman. 3. An investigation was conducted by the AG on the applicant's unit and battalion commander. The commander inquired to the applicant as to why he did what he did by going to his Congressman. He informed the battalion commander that he would not listen to him about the level of discharge that he was seeking. The battalion commander informed the applicant that he would do everything possible to ensure that he would never serve again. 4. The applicant was counseled by his first sergeant regarding the statement he made to the commander, that he had used cocaine during the period February through April 1996. He was informed on the consequences of using illegal drugs. 5. The applicant consulted with counsel who prepared a memorandum for the battalion commander. Counsel stated that the battalion had initiated paperwork to separate the applicant from the military pursuant to Army Regulation 635-200, chapter 14. The applicant had also requested separation pursuant to Army Regulation 635-200, chapter 16, for failure to overcome a locally imposed bar to reenlistment, which was unavailable for review. 6. Counsel informed the battalion commander that it was his obligation to ensure that the command abided by all the appropriate regulations separating the applicant from the military. It was his opinion that separation under the provisions of Army Regulation 635-200, chapter 14, would be in violation of Army Regulation 600-85, ADAPCP. Counsel stated that all of the information that the command had regarding drugs use was "limited use" evidence, as defined in Army Regulation 600-85. 7. Counsel stated that the applicant self "referred" himself numerous times, once to his command and several times to the unit chaplain. However, the command and the chaplain failed to refer the applicant to ADAPCP, which was required by Army Regulation 600-85. Counsel also stated that Army Regulation 635-200 did not specifically provide for separation under the major misconduct chapter, using solely limited use information. Such a separation would directly conflict with ADAPCP polices, which work in conjunction with the separation regulation. Counsel further stated that separating the applicant pursuant to the major misconduct chapter would be contrary to several Army regulations and polices. Counsel concluded that the best way in which to "protect the record" in this case from future action would be to separate the applicant under Army Regulation 635-200, chapter 16. 8. Separation proceedings were initiated against the applicant under the provisions of Army Regulation 635-200, chapter 14-12c(2), for commission of a serious offense which was based on his wrongful use of cocaine between the dates of 1 February and 31 March 1996. His records contained no derogatory information. He consulted with counsel, waived his rights, and elected not to submit a statement in his behalf. His separation was approved by the battalion commander, a LTC/O-5, of the 2nd Battalion, 75th Ranger Regiment. 9. The applicant was discharged under the provisions of Army Regulation 635-200, chapter 14-12c(2), for misconduct. He was issued an SPD Code of "JKK" with a corresponding RE Code of "4", which was consistent with his basis for separation. His records contained no derogatory information. 10. According to applicable regulation, commanders who are special court-martial convening authority are authorized to order separation or release from AD or ADT under chapter 14, when under other than honorable conditions is not warranted. An honorable discharge may be ordered when the commander exercising general court-martial jurisdiction has authorized the separation. However, the approving authority for the applicant's honorable discharge was a LTC/O-5 who was not the general court-martial convening authority. 11. There was no reason for the applicant's discharge and he was never referred for enrollment in a drug treatment program by his command according to regulation. When his command violated the limited use policy, it was locked into the issuance of an honorable discharge. 12. The overall evidence clearly shows that there were improprieties in the applicant's case and his separation and issuance of an honorable discharge under the provisions of the regulation used as the authority should have been approved by the first commander exercising general court-martial jurisdiction. 13. The evidence shows that the command was given guidance that the applicant should not have been recommended for separation for drug use but decided to ignore the advice; thus, the incorrect provisions of the separation regulation were used. The narrative reason and attendant RE Code is incorrect given the circumstances of his case. There is no physical evidence or other evidence that the applicant used illegal drugs. It is apparent command relied on a report made by an acquaintance of the applicant and his admission. 14. In view of the circumstances of this case, and in the interest of justice, it would be appropriate to show that he was honorably discharged at his scheduled ETS date of 13 December 1996; that he receive all back pay and allowances in the pay grade of E-5 from 31 August to 13 December 1996; and that item 25 (Separation Authority) be changed from "AR 635-200, Paragraph 14-12c(2) to AR 635-200, Paragraph 5-3." Therefore, it would also be appropriate to change item 26 (Separation Code) to show the entry "JFF", item 27 (Reentry Code) to show the entry "1", and item 28 (Narrative Reason for Separation) to show the entry "SECRETARIAL PLENARY AUTHORITY" on his DD Form 214. BOARD VOTE: _JS_____ _PM____ _LJO___ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief and to excuse failure to timely file. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected: a. by showing the entry "1996 12 13" in item 12b, of the applicant's DD 214; b. by showing the entry "AR 635-200, Paragraph 5-3" in item 25 (Separation Authority), of the applicant's DD 214; c. by showing the entry "JFF" in item 26 (Separation Code), of the applicant's DD 214; d. by showing the entry "1" in item 27 (Reentry Code), of the applicant's DD 214; e. by showing the entry "Secretarial Plenary Authority" in item 28 (Narrative Reason for Separation) of the applicant's DD Form 214; and f. by directing the Defense Finance and Accounting Service to audit the applicant's military pay account and provide all back pay and entitlements to which the applicant is entitled from the date of his separation to his normally scheduled ETS of 13 December 1996, had he not been erroneously separated. ____ John Slone__ __ CHAIRPERSON INDEX CASE ID AR20050001894 SUFFIX RECON YYYYMMDD DATE BOARDED 20051123 TYPE OF DISCHARGE HD DATE OF DISCHARGE 19960830 DISCHARGE AUTHORITY AR 635-200, chapter 14-12c(2) DISCHARGE REASON BOARD DECISION DENY REVIEW AUTHORITY ISSUES 1. 100 2. 3. 4. 5. 6.