IN THE CASE OF: BOARD DATE: 13 October 2016 DOCKET NUMBER: AR20150007670 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 IN THE CASE OF: BOARD DATE: 13 October 2016 DOCKET NUMBER: AR20150007670 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. IN THE CASE OF: BOARD DATE: 13 October 2016 DOCKET NUMBER: AR20150007670 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 correction of the narrative reason for his separation and an upgrade of his separation code and reentry (RE) code. 2. The applicant states he has previously requested for an upgrade of his discharge in 2005 and it was granted on 23 March 2006. Unfortunately, he is still not able to use his benefits or reenlist. However, the crimes or judgements brought against him were incorrect and overturned. Therefore, he is asking for a change to the separation reason and RE code. He would like a new DD Form 214 (Certificate of Release or Discharge from Active Duty) or a DD Form 215 (Correction to DD Form 214) in order to reenlist in the National Guard; they are taking prior service members. He states his time is limited but this is his second chance to be part of something bigger than himself. It is another chance to build a solid foundation for him and his family while being a positive, motivating, encouraging role model. 3. The applicant provides: * decision memorandum from the Army Discharge Review Board (ADRB) * DD Form 214 and Honorable Discharge Certificate * electro-mechanical maintenance course certificate * Social Security statement 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 9 November 1999. 3. He was frequently counseled by members of his chain of command for various infractions including failing to show up to formations, disobeying orders, being absent without leave (AWOL), and testing positive for illegal drugs. 4. On 4 February 2001, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana. 5. On 11 April 2001, he departed his unit in an AWOL status. He returned to military control on 16 April 2001. 6. On 3 May 2001, he accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL from 11 to 16 April 2001 and twice failing to go at the time prescribed to his appointed place of duty. 7. On 19 June 2001, he participated in a unit urinalysis and his urine sample tested positive for marijuana. 8. On 10 July 2001, the applicant underwent a mental status evaluation. The results indicated the applicant had the mental capacity to understand and participate in proceedings, was mentally responsible, met retention standards of Army Regulation (AR) 40-501 (Standards of Medical Fitness), and was cleared for administrative actions deemed appropriate by his chain of command. 9. On 7 September 2001, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b, for a pattern of misconduct. He cited the applicant's AWOL, multiple failures to go at the time prescribed to his appointed place of duty, and testing positive for illegal drugs. He recommended a general discharge under honorable conditions. 10. On 9 September 2001, the applicant acknowledged receipt of the commander's intent to separate him. He subsequently consulted with legal counsel and he was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive, the possible effects of this discharge, and the procedures and rights available to him. He waived consideration of his case by an administrative separation board. He also elected not to submit a statement on his own behalf. He further indicated he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him and he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of a discharge under other than honorable conditions. 11. Subsequent to this acknowledgement, the immediate commander initiated separation action against him under the provisions of AR 635-200, paragraph 14-12b, due to misconduct. His intermediate commander recommended approval with the applicant's service characterized as general, under honorable conditions. 12. On 18 September 2001, consistent with the chain of command's recommendations and subsequent to a legal review for legal sufficiency, the separation authority approved the applicant's discharge under the provisions of AR 635-200, paragraph 14-12b, by reason of misconduct and directed his service be characterized as under honorable conditions (general). Accordingly, the applicant was discharged on 1 October 2001. 13. His DD Form 214 confirms he was discharged by reason of misconduct in pay grade E-1 on 1 October 2001 under the provisions of paragraph 14-12c of AR 635-200 with a character of service of under honorable conditions (general). This form shows he completed 1 year, 10 months, and 1 day of creditable active service during the period under review. Additionally, his DD Form 214 shows in: * item 26 (Separation Code) – JKA * item 27 (RE Code) – 3 * Item 28 (Narrative Reason for Separation) – misconduct 14. On 23 February 2006, the ADRB reviewed his discharge and determined the character of service was improper due to the introduction of a biochemical test administered solely for rehabilitative treatment. This mandated award of an honorable discharge. However, the ADRB determined that the reason for the discharge was supported by the record and voted not to change it. 15. The applicant's original DD Form 214 was voided. He was reissued a new DD Form 214 that reflects his honorable characterization of service but shows the same narrative reason, separation code, and RE code. 16. He provides a Social Security Statement as well as a certificate showing completion of an electro-mechanical maintenance course. REFERENCES: 1. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities, and desertion or absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. Army policy states that a discharge under other than honorable conditions is normally considered appropriate for a Soldier discharged for patterns of misconduct; however, the discharge authority may direct an honorable or general discharge if such is merited by the Soldier's overall record. b. 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. 2. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty. SPD code "JKA" is the correct code for Soldiers separating under the provisions of paragraph 14-12b of AR 635-200 by reason of misconduct – pattern of misconduct. 3. Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve. It states, in pertinent part, 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. Table 3-1 included a list of the Regular Army RE codes. * RE-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 * RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable; they are ineligible unless a waiver is granted * RE-4 applies to Soldiers separated from their last period of service with a nonwaivable disqualification 4. 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 shows the SPD code and a corresponding RE code. The table in effect at the time of his discharge shows the SPD code of "JKA" has a corresponding RE code of "3." DISCUSSION: 1. The applicant exhibited a pattern of misconduct in the form of failing to be at his appointed place of duty, being AWOL, and testing positive for illegal drugs. Accordingly, his chain of command initiated separation action against him. He was advised of and acknowledged his rights. The separation authority ultimately approved the separation action in accordance with chapter 14 of Army Regulation 635-200 for a pattern of misconduct. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 2. His discharge appears to have been appropriate based on the quality of his service. His service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel. However, when the ADRB reviewed his discharge processing, it determined that his commander introduced into his discharge the results of a drug test administered solely as part of his rehabilitative treatment. This was improper and mandated an honorable discharge. As a result, his DD Form 214 was voided and he was reissued a new DD Form 214 that reflects an honorable characterization of service. The ADRB's action had no effect on the underlying basis for his discharge. 4. The applicant's narrative reason for separation was assigned because he was discharged under the provisions of chapter 14 of Army Regulation 635-200 due to a pattern of misconduct. Absent his continued misconduct, there was no fundamental reason to process him for discharge. The only valid narrative reason for separation permitted for separation under that paragraph is "misconduct – pattern of misconduct" and the separation code associated with this discharge is "JKA." Additionally, separation code "JKA" has a corresponding RE code of "3." 5. The ABCMR does not correct records solely for establishing eligibility for other programs or benefits. He exhibited a pattern of misconduct and his chain of command initiated separation action against him. He was assigned the narrative reason for separation, separation code, and RE code that are applicable to the reason for his separation. He has not submitted any substantiating evidence to show these entries on his DD Form 214 are in error or inequitable. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150007670 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150007670 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2