IN THE CASE OF: BOARD DATE: 25 October 2011 DOCKET NUMBER: AR20110009316 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, upgrade of his general discharge to an honorable discharge and change of his narrative reason for separation. 2. The applicant states he was pressured into reenlisting against his better judgment. Since his discharge, he has become a better citizen with maturity. He states that having his discharge upgraded would provide him with better opportunities for himself and his family, such as work, school, and health care. He states that he made a mistake, but he still loves his country and the military life. He regrets his mistake and carries a heavy load of guilt and shame. 3. The applicant provides no additional documentation to support his application. 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 7 July 1982 for a period of 3 years. He completed basic and advanced individual training and he was awarded military occupational specialty 16R (Air Defense Artillery Short Range Gunnery Crewmember). 3. On 1 February 1983, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully possessing marijuana. 4. On 6 July 1985, he was honorably discharged for the purpose of immediate reenlistment. During this period of service he completed the Primary Leadership Development Course, he was awarded the Army Service Ribbon and the Army Good Conduct Medal (1st Award), and he attained the rank/grade of sergeant (SGT)/E-5. He reenlisted on 7 July 1985 for a period of 3 years. 5. On 3 October 1985, he accepted NJP under Article 15, UCMJ, for testing positive for marijuana on a mandatory unit urinalysis screening. 6. His record contains a DA Form 4126-R (Bar to Enlistment/Reenlistment Certificate), dated 7 October 1985, that shows he was barred from reenlistment after testing positive for marijuana. 7. On 9 October 1985, the applicant’s commander initiated elimination action on him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, for misconduct - commission of a serious offense. The reason cited by the commander was the applicant tested positive for illegal drugs. 8. The applicant was advised by consulting counsel of the basis for the contemplated separation action. He was also advised of the impact of the discharge action. He signed a statement indicating that he was advised he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 14. The applicant requested counsel, waived his right to an administrative board, and elected not to submit a statement in his own behalf. 9. On 22 October 1985, the appropriate authority approved the separation action and directed his discharge under the provisions of Army Regulation 635-200, chapter 14, for misconduct - commission of a serious offense, with a General Discharge Certificate. On 21 November 1985, he was discharged accordingly after completing 3 years, 4 months, and 15 days of creditable active service. The DD Form 214 he was issued at the time shows he was discharged under the authority of Army Regulation 635-200, paragraph 14-12c, with a separation code of "JKQ," and a narrative reason of separation of misconduct - commission of a serious offense. 10. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service. Individuals in pay grades E-5 and above must be processed for separation upon discovery of a drug offense. The issuance of a discharge under other than honorable conditions is normally considered appropriate. 11. Army Regulation 635-200, paragraph 3-7a, provides 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. 12. Army Regulation 635-5-1 (Separation Program Designator (SPD)) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It states that the SPD code JKQ is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct - commission of a serious offense. DISCUSSION AND CONCLUSIONS: 1. The applicant was a SGT and during his mandatory unit urinalysis screening he tested positive for marijuana. Based on the positive test results, his commander initiated separation action under the provisions of Army Regulation 635-200, chapter 14, for misconduct - commission of a serious offense. 2. The applicant's record shows he received two Article 15s, one for possession of marijuana and the other for wrongfully using marijuana. He was also barred from reenlistment based on testing positive for illegal drugs. As a result, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for the issuance of an honorable discharge. 3. The applicant's administrative separation was accomplished in accordance with applicable regulations with no indication of procedural errors that would have jeopardized his rights. Based on his authority for separation and the corresponding SPD, his narrative reason for separation is correct as shown on his DD Form 214. 4. In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process. 5. In view of the foregoing, there is no basis for granting the applicant's requested relief. 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) AR20110009316 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110009316 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1