IN THE CASE OF: BOARD DATE: 29 March 2016 DOCKET NUMBER: AR20150009387 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: 29 March 2016 DOCKET NUMBER: AR20150009387 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: 29 March 2016 DOCKET NUMBER: AR20150009387 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 his general discharge be upgraded to honorable or he be allowed to reenter the Army. 2. He states he has been struggling with what he has done and lives with it every day with regret. He explains that he is married and his partner is struggling with cancer. However, since his partner is not a citizen, getting the best treatment for him is difficult. He concludes that he would like a chance to either receive an honorable discharge or join the military again to prove his worth to his country. 3. He does not provide any additional evidence. 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 (RA) on 6 April 2010. 3. The discharge packet or any other documents pertaining to the applicant's discharge proceedings under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14-12, are not contained in his available military records. However, his records contain a DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged on 25 May 2011, under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct (drug abuse) with an under honorable conditions character of service. It also shows a separation code of JKK and a reentry (RE) code of "4." The form shows he completed 1 year, 1 month, and 20 days of net active service during this period. 4. On 17 October 2011, he appealed to the Army Discharge Review Board (ADRB) for an upgrade of his discharge. On 26 April 2012, after careful consideration of his military records and all other available evidence, the ADRB determined he was properly and equitably discharged. The board denied his request for a discharge upgrade. REFERENCES: 1. Army Regulation 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, commission of a serious offense, and abuse of illegal drugs. 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. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. b. 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. 2. 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 JKK is the appropriate code to assign to Soldiers separated for misconduct (drug abuse), under the provisions of Army Regulation 635-200, paragraph 14-12. The SPD/RE Code Cross Reference Table stipulates that an RE-4 code will be assigned to members separated under these provisions with an SPD code of JKK. 3. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) prescribes eligibility criteria governing the enlistment of persons, with or without prior service, into the RA, the U.S. Army Reserve, and the Army National Guard. a. Table 3-1 includes a list of the Army RE codes: (1) 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. (2) 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. (3) RE-4 applies to Soldiers who are separated from their last period of service with a nonwaivable disqualification. b. Paragraph 3-24 states that RE codes may be changed only if they are determined to be administratively incorrect. DISCUSSION: 1. Although a complete copy of the applicant's chapter 14 discharge packet is not in his available records, the presumption of administrative regularity must be applied. He must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust. The applicant failed to submit evidence that would satisfy this requirement. 2. Additionally, his contention, in effect, that his discharge should be upgraded to honorable in order to receive medical benefits for his partner was considered. However, there are no provisions in Army regulations that allow the upgrade of a discharge for the sole purpose of securing veteran's benefits. He must provide evidence to prove the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the upgrade. 3. With regard to his request to be allowed to reenter the military, the evidence shows by regulation that members separated for misconduct (drug abuse) under the provisions of Army Regulation 635-200, paragraph 14-12, are assigned an SPD code of "JKK" and an RE code of "4." Therefore, the SPD and RE codes assigned to the applicant are appropriate and remain valid. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150009387 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150009387 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2