IN THE CASE OF: BOARD DATE: 6 December 2016 DOCKET NUMBER: AR20160003537 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: 6 December 2016 DOCKET NUMBER: AR20160003537 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: 6 December 2016 DOCKET NUMBER: AR20160003537 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 discharge and correction to the following items of his DD Form 214 (Certificate of Release or Discharge from Active Duty): * Item 23 (Type of Separation) – remove or change his type of separation * Item 24 (Character of Service) – changed from under honorable conditions (general) to honorable * Item 26 (Separation Code) – remove or change his separation code * Item 28 (Narrative Reason for Separation) – remove the entry "Misconduct (Drug Abuse)" 2. The applicant also requests a personal appearance hearing. 3. The applicant states, in effect: a. He was told that if he pled guilty to his commander he would be given a second opportunity to continue to serve in the Army. He pled guilty, he accepted full responsibility for his actions, and he apologized. Since then, he has changed his life for the better and he wants to become a physical therapy doctor. He would like the Board to upgrade his discharge and remove the drug abuse statement from his DD Form 214 so that he may gain access to his G.I. Bill to further his education and living situation. b. He recalls being tested for drugs multiple times before his deployment. However, he does not recall the dates because the tests were unannounced. He deployed to Afghanistan and Kuwait on or about March 2012. A month into the deployment, his command told him he was being redeployed because they no longer needed him. When he redeployed to his unit in HI, his command informed him he was being chaptered. He was assigned extra duty and the command informed him he had tested positive for drugs; however, they did not provide the lab tests or other evidence to substantiate their claim. As he continued to work the extra duty, he was informed he was being investigated. By the time he was informed he could seek legal advice, the timeline to do so had lapsed and the company commander had already made her decision, which resulted in an unjust separation. c. The command said police arrested him and that he had a pattern of misconduct. These are false allegations, which are unsubstantiated. Finally, in reference to a memorandum from the Secretary of the Army, dated 13 March 2012, he argues that he does not meet the criteria for separation from the Army as outlined in this memorandum. He loves his country and wants to continue to serve in the Armed Forces or pursue higher education. 4. The applicant provides five letters. 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 2010. 3. His record contains a letter to a Member of Congress from the Acting Assistant Chief of Staff, G-1, Headquarters, 8th Theater Sustainment Command, Fort Shafter, HI, dated 31 July 2012. The letter was in response to the applicant's request to be retained in service until his expiration term of service (ETS) date of 30 November 2014. The letter states, in effect: a. On 3 March 2012, the applicant was command directed to conduct a urinalysis by his commanding officer. His commander directed the urinalysis because the Honolulu Police Department arrested the applicant for being under the influence of drugs. The applicant deployed on 18 March 2012 to Kuwait. On 10 April 2012, the command received notification that the applicant's urine sample tested positive for Spice and subsequently escorted him back to HI. b. The applicant was notified of his positive urinalysis on 24 April 2012. He received Field Grade nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ). The applicant's separation from the Army was initiated under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 14-12c(2), misconduct, abuse of illegal drugs. c. On 20 June 2012, the applicant met with his trial defense counsel, and acknowledged in writing that he understood his rights and the basis for his Article 15 and separation from the Army. The command reviewed all the letters submitted on his behalf and considered them for the characterization of his service. The command decided to separate the applicant from the Army prior to his ETS date with an under honorable conditions (general) discharge instead of a dishonorable discharge because the applicant chose to take full responsibility for his actions. 4. The applicant's discharge packet is not available; therefore, the complete facts and circumstances of his discharge are not available for review with this case. However, his record contains a DD Form 214, which shows he was discharged on 8 August 2012 after completing 2 years, 1 month, and 2 days of creditable active service with no time lost. Additionally, this form contains the following entries: * Item 23 - "DISCHARGE" * Item 24 - "UNDER HONORABLE CONDITIONS (GENERAL)" * Item 25 (Separation Authority) - "AR 635-200, PARA 14-12C(2)" * Item 26 - "JKK" * Item 27 (Reentry Code) - "4" * Item 28 - "MISCONDUCT (DRUG ABUSE)" 5. On 24 April 2013, the Army Discharge Review Board denied his petition for an upgrade of his discharge. 6. The applicant provides several letters of recommendation and support from personnel in various supervisory positions relative to the applicant. Each, in effect, recommended him for retention in the U.S. Army. REFERENCES: 1. Army Regulation 635-200, section III (Acts or Patterns of Misconduct), paragraph 14-12c(2), states commission of a serious military or civil offense is a basis for separation if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual of Court-Martial (MCM). Abuse of illegal drugs is serious misconduct. Soldiers against whom charges will not be referred to a court-martial authorized to impose a punitive discharge will be processed for separation under paragraph 14-12c, as applicable. The immediate and intermediate commanders will recommend separation or retention. Recommendations will be made as to characterization of service. The separation reason in all separations authorized by paragraph 14-12c(2) will be "misconduct-abuse of illegal drugs." 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 "JKK" is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12c (2), due to misconduct (drug abuse). 4. The Separation Program Code Designator Code (SPD)/RE Code Cross-Reference Table, shows an RE code of 4 is used when a Soldier receives the SPD code of "JKK" for misconduct IAW Army Regulation 635-200, paragraph 14-12c(2). 5. 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. Table 3-1 includes a list of the RE codes. * An RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army, qualified for enlistment if other criteria are met * An RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable, ineligible unless a waiver is granted * An RE-4 applies to Soldiers separated from their last period of Service with a nonwaivable disqualification; Soldiers receiving an RE code of "4" are ineligible for enlistment. DISCUSSION: 1. The applicant contends that he did not meet the criteria for separation based on a memorandum from the Secretary of the Army. There is a presumption of regularity in the conduct of governmental affairs that applies in any review unless there is substantial credible evidence to rebut the presumption. The applicant bears the burden of overcoming the presumption through the presentation of substantial and credible evidence to support his contentions. In this case, there is no evidence that would overcome the presumption of regularity with regard to the criteria for separation. 2. His record is void of the complete facts and circumstances that led to his discharge. However, his record contains a DD Form 214 that shows he was discharged on 8 August 2012 under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c(2) by reason of misconduct (drug abuse) with a characterization of service of under honorable conditions (general). 3. Absent evidence to the contrary, it is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process. It is also presumed that his discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel. 4. Based on the available evidence and the presumption of government regularity, it appears the applicant's type of separation, his character of service, the separation authority, the separation code, and the narrative reason for separation were proper and equitable. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160003537 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003537 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2