IN THE CASE OF: BOARD DATE: 19 April 2016 DOCKET NUMBER: AR20150007950 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: 19 April 2016 DOCKET NUMBER: AR20150007950 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. IN THE CASE OF: BOARD DATE: 19 April 2016 DOCKET NUMBER: AR20150007950 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 an upgrade of his general discharge to an honorable discharge. 2. The applicant states: a. His discharge should be upgraded because he was disciplined for smoking marijuana once. He knew he made a big mistake 11 years ago when he did it and he greatly regrets that mistake. He was demoted in rank and spent months on extra duty. b. At the time, he felt that that was enough discipline; however, the brigade's commanding officer felt differently. When he was in front of the commander to be judged on whether he was going to be able to stay in the Army, every one of his superiors, from his squad leader to his captain (CPT), felt that he was an extremely good Soldier that made a mistake and should be able to stay in the Army. Not one had a negative thing to say about him but he was discharged from the Army anyway. c. He has made several attempts to reenlist into multiple branches of the service. All he wants is the opportunity to redeem himself before he is too old. He is now 32 years of age and the window is closing. If for nothing else, he would like his discharge upgraded to help him in the private sector. He has flourished in his civilian career but would still like to be able to serve again, if possible. He does not want one mistake from so many years ago to deny him the opportunity to serve. 3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty). 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 24 September 2002 and he held military occupational specialty (MOS) 35E (Radio and Communications Security Equipment (COMSEC) Repairer). On 8 July 2003, he was assigned to the 98th Maintenance Company, Fort Richardson, AK. On 1 April 2004, he was promoted to the rank/grade of specialist (SPC)/E-4. 3. On 24 March 2004, a U.S. Army Criminal Investigation Command (CID) investigation was initiated against him and a second Soldier in his command based on his immediate commander’s report that both Soldiers tested positive for tetrahydrocannabinol (THC), the active ingredient in marijuana during a random unit urinalysis test. 4. The CID final report, dated 30 March 2004, shows the investigation established probable cause to believe both Soldiers committed the offense of the wrongful use of a controlled substance and both Soldiers admitted they had used marijuana in the past while assigned to Fort Richardson, AK. The applicant’s barracks room was searched and the other Soldier’s residence was searched. Taken into evidence was a handkerchief containing four pipes, a prescription bottle containing suspected marijuana, and cigarette papers. 5. On 24 March 2004, in a DA Form 2823 (Sworn Statement) to CID, the applicant stated on 9 March 2004 SPC M called him to say he had a surprise for him and to go to his house. He did and SPC M showed him marijuana and they both smoked it. It was only the second time since he had been in the Army that had smoked marijuana and the first time had also been with SPC M when he first arrived in August 2003. 6. On 26 April 2004, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully using marijuana on or between 11 February and 10 March 2004. Part of the punishment imposed was reduction to private (PV2)/E-2 and 45 days of extra duty. 7. On 20 May 2004, he was notified by his immediate commander of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 14, paragraph 14-12c, for misconduct - commission of a serious offense, the wrongful use of marijuana. The commander stated he was recommending he receive a general discharge. 8. On 20 May 2004, he acknowledged receipt of the commander's notification. On 14 June 2004, he consulted with legal counsel and he was advised of the basis for the contemplated separation action for misconduct - abuse of illegal drugs, the type of discharge he could receive, its effect on further enlistment or reenlistment, the possible effects of this discharge, and the procedures and rights available to him. He declined to submit a statement on his own behalf. 9. His commander subsequently submitted the recommendation for separation through the chain of command. 10. On 8 July 2004, his immediate commander requested the applicant be retained in the Army. He stated he originally requested the applicant be chaptered for drug use. However, he was a one-time offender that had no prior record of misconduct. His decision had been based partially on the fact that the applicant no longer wanted to be in the Army due to the fact he would lose his security clearance and would have to reclassify from his current MOS. The applicant had since decided that he would like to still be a part of the Army and understood he might be required to change his MOS. His duty performance was above average and he did not show any indication of being a problem Soldier. 11. On 12 July 2004, his senior commander recommended approval of the applicant’s separation action with a general discharge. 12. On 21 July 2004, the separation authority approved his discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct with a general discharge. On 10 August 2004, he was discharged accordingly. 13. The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c(2), by reason of misconduct, with an under honorable conditions (general) characterization of service. His DD Form 214 also shows the following entries in * item 26 (Separation Code) - JKK * item 27 (Reentry (RE) Code) - 4 14. On 23 September 2009, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge and determined he was properly and equitably discharge. REFERENCES: 1. Army Regulation 635-200, then in effect, set 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 abuse of illegal drugs. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. 2. 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. 3. 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 of JKK is the appropriate code to assign Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct. The SPD/RE Code Cross Reference Table stipulates that an RE code of 4 will be assigned to members separated under these provisions with an SPD code of JKK. 4. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve. Table 3-1 shows the RE codes and states in pertinent part: a. 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. b. 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 for enlistment unless a waiver is granted. c. RE-4 applies to Soldiers who are not considered fully qualified for reentry or continuous services at time of separation and the disqualification is not waivable. DISCUSSION: 1. The evidence of record confirms the applicant demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by his commission of a serious offense for wrongfully using marijuana. Accordingly, his immediate commander initiated separation action against him under the provisions of AR 635-200, paragraph 14-12c for misconduct. 2. His separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. The type of discharge directed and the reason for separation were appropriate considering all the facts of the case. 3. Notwithstanding the applicant’s contention that he had used marijuana only once, in the Sworn Statement he completed on 24 March 2004 he admitted that he had wrongfully used marijuana on at least two occasions. Regardless, the wrongful use of a controlled substance is a serious offense even if it had only occurred on one occasion. In addition, it appears the command took the applicant’s overall record into consideration when he was discharged with an under honorable (general) characterization of service instead of with an under other than honorable conditions characterization of service. 4. Based on his overall record, his service did not meet the standards of acceptable conduct for Army personnel that would meet the criteria for an honorable discharge. 5. His narrative reason for separation was assigned based on his discharge under the provisions of chapter 14 of Army Regulation 635-200 due to misconduct. Absent his misconduct by wrongfully abusing drugs, there was no fundamental reason to process him for discharge. The underlying reason for his discharge was his misconduct. The only valid narrative reason for separation permitted under that paragraph is "misconduct" and the appropriate SPD code associated with this discharge is "JKK" which are correctly shown on his DD Form 214. 6. The RE code associated with this type of discharge is RE-4. An RE-4 applies to Soldiers who are not considered fully qualified for reentry or continuous services at time of separation and the disqualification is not waivable. His DD Form 214 reflects the correct RE code. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150007950 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150007950 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2