RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        30 August 2005
      DOCKET NUMBER:  AR20040006338


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Maria C. Sanchez              |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Paul Smith                    |     |Chairperson          |
|     |Ms. Yolanda Maldonado             |     |Member               |
|     |Mr. Leonard Hassell               |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his misconduct charge be removed from his
record and that his bar to reenlistment be lifted.

2.  The applicant states he was not guilty of the offenses alleged.

3.  The applicant does not provide any supporting evidence with his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 26 February 1992, the date of his separation.  The application
submitted in this case was received on 25 August 2004.

2.  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 that it would be in the interest of justice to do
so.  The ABCMR has elected to conduct a substantive review of this case to
determine if it would be in the interest of justice to excuse the
applicant’s failure to timely file.

3.  The applicant enlisted in the Army on 12 February 1980 for a period of
four years.  After completion of basic and advance individual training, he
was awarded military occupational specialty (MOS) 11B (Infantryman).

4.  The applicant continued to serve through a series of reenlistments.  On
27 January 1989, he reenlisted for a period of 4 years in the MOS 91B
(Medical Specialist).

5.  The applicant's records show that he received numerous awards including
two awards of the Good Conduct Medal and the Army Achievement Medal.

6.  Records contain a DA Form 4856 (General Counseling Form), dated
11 March 1991, informing the applicant that he tested positive for cocaine
on the unit's urinalysis test which was conducted on 15 February 1991.
This form also advised the applicant he was flagged for favorable personnel
actions and recommended he seek legal advice.

7.  Nonjudicial punishment was imposed against the applicant on 12 March
1991 for wrongful use of cocaine on or between 13 February 1991 and 19
February 1991.  His punishment consisted of 45 days of extra duty.

8.  Records contain a memorandum, dated 22 March 1991, from Headquarters
and Headquarters Troop, 5th Squadron, 9th Cavalry of the 25th Infantry
Division which shows that the unit commander requested a retest of the
applicant's urinalysis specimen.

9.  Records contain a memorandum, dated 29 March 1991, from Headquarters,
Tripler Army Medical Center, which states the retest of the applicant's
urine sample was positive for cocaine.

10.  Records contain DA Form 2802 (Polygraph Examination Report), dated
3 April 1991, which shows the applicant's legal counsel requested a
polygraph examination for exculpatory purposes.  This form shows that the
applicant admitted he used cocaine; therefore, the polygraph testing was
deemed inappropriate because the testing issue was resolved with the
applicant's confession.

11.  On 10 June 1991, the unit commander advised the applicant that he was
recommending his discharge under the provisions of chapter 14, paragraph
12c of Army Regulation 635-200 (Personnel Separations Enlisted Personnel).

12.  On 10 June 1991, the applicant consulted with counsel and requested to
appear before an administrative separation board.  He elected not to submit
statements in his own behalf.

13.  On 26 July 1991, the applicant appeared before a board of officers
with counsel which found the applicant had committed a serious offense.
This board recommended that he be separated and given an Honorable
Discharge Certificate.

14.  Records contain a memorandum, dated 30 July 1991, from United States
Army Trial Defense Service, wherein the applicant's legal counsel raised
the issue that he should be separated by a Medical Evaluation Board (MEB),
rather then be administratively separated under the provisions of chapter
14 of Army Regulation 635-200.  This memorandum states that the general
court-martial convening authority should determine whether the applicant
should be administratively separated or medically separated.

15.  Records contain a memorandum, dated 29 August 1991, from an Army
medical corps officer at Headquarters, 25th Infantry Division.  The
military medical doctor recommended that the applicant be referred to a MEB
and recommended postponement of any further separation proceedings until
the results of the MEB are available.

16.  On 1 November 1991, the applicant was notified by memorandum that a
Department of the Army Bar to Reenlistment was imposed against him under
the Qualitative Management Program (QMP).  The memorandum states the
Department of the Army Calendar Year 1991 Master Sergeant Promotion Board
considered his record of service including performance and future potential
for retention in the Army and it determined the applicant should be barred
from reenlistment.

17.  Records contain a memorandum, dated 12 November 1991, from the Chief
of Criminal Law, which states that the applicant's administrative
elimination file and the MEB results were forwarded to the commanding
general for action.

18.  On 25 November 1991, the commanding general of the 25th Infantry
Division approved the applicant's separation under the provisions of
chapter 14 of Army Regulation 635-200 with an Honorable Discharge
Certificate.  The approving authority stated the applicant's medical
problems were not the cause or substantial contributing cause of his
misconduct and circumstances do not warrant processing of his case through
disability channels.

19.  The applicant's DD Form 214 (Certificate of Release or Discharge from
Active Duty) shows he was honorably discharged on 26 February 1992 under
the provisions of paragraph 14-12c of Army Regulation 635-200 by reason of
misconduct – commission of a serious offense.  The DD Form 214 also shows
that based on the authority and reason for his separation, he was assigned
a separation program designator (SPD) code of JKQ (Misconduct) and an RE
code "3."

20.  The applicant applied to the Army Discharge Review Board (ADRB) to
change his narrative reason for separation and his reenlistment (RE) code.
On 21 July 2004, the ADRB determined that the applicant's discharge was
proper and equitable; however, the narrative reason for discharge was now
inequitable based on today's standards.  The ADRB changed the reason to
Secretarial Authority under chapter 5 of Army Regulation 635-200.

21.  The ADRB specifically rejected the RE code issue raised by the
applicant and indicated that the RE-3 code did not fall within the purview
of that Board.
22.  The new DD Form 214 issued to the applicant based on the ADRB action
confirms the authority for the applicant’s separation was changed to
paragraph 5-3, Army Regulation 635-200 and the narrative reason for his
separation was changed to Secretarial Authority.  It also shows the
assigned SPD code was changed to JFF, but the RE code remained RE-3.

23.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel from active duty.  Chapter 14, in effect
at the time, dealt with separation for various types of misconduct, which
include drug abuse, and provides that individuals identified as drug
abusers may be separated prior to their normal expiration of term of
service (ETS).  Individuals in pay grades E-5 and above must be processed
for separation upon discovery of a drug offense.  Those in pay grades below
E-5 may also be processed after a first drug offense and must be processed
for separation after a second offense.  The commander exercising general
court-martial jurisdiction may delegate authority to the special court-
martial convening authority to approve separation with service
characterized as honorable when the sole evidence of misconduct is
urinalysis results.

24.  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 (RA) and the U.S. Army
Reserve.  Chapter 3 of that regulation prescribes basic eligibility for
prior service applicants for enlistment.  That chapter includes a list of
armed forces RE codes, including RA RE codes.  RE 1 and 2 permit immediate
reenlistment if all other criteria are met. RE-3 applies to persons not
qualified for continued Army service, but the disqualification is waivable.

25.  Army Regulation 635-5-1 (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, in
pertinent part, that the SPD code of JFF is the appropriate code to assign
to Soldiers who separated under the provisions of paragraph 5-3, Army
Regulation 635-200, by reason of Secretarial Authority.  The SPD/RE Code
Cross Reference Table included in the regulation stipulates that the RE
code assignment will be based on the Department of the Army directive
authorizing separation.

26.  Paragraph 10-5 of Army Regulation 601-280 (Army Retention Program)
governs screening procedures and states, in pertinent part, that
appropriate Department of the Army Selection Boards will review the
performance portion of the Official Military Personnel File, the DA Form 2A
(Personnel Qualification Record Part-I) and DA Form 2-1 (Personnel
Qualification Record Part-II), and other authorized documents.  From these
documents, the board will evaluate past performance and estimate the
potential of each service member to determine if continued service is
warranted.

27.  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.  The U.S. Court of Appeals, observing
that applicants to the Army Discharge Review Board (ADRB) are by statute
allowed 15 years to apply there, and that this Board's exhaustion
requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens
that filing period, has determined that the 3 year limit on filing to the
Army Board for Correction of Military Records (ABCMR) should commence on
the date of final action by the ADRB.  In complying with this decision, the
ABCMR has adopted the broader policy of calculating the 3-year time limit
from the date of exhaustion in any case where a lower level administrative
remedy is utilized.

DISCUSSION AND CONCLUSIONS:

1.  The date of application to the ABCMR is within three years of the
decision of the Army Discharge Review Board; therefore, the applicant has
timely filed.

2.  The applicant contends that his misconduct charge should be removed and
his bar to reenlistment should be lifted.

3.  The applicant's records show that his urinalysis specimen tested
positive for cocaine initially and upon retest.  Records further show the
applicant admitted use of cocaine.  Therefore, the applicant's contention
that he was not guilty of any offense is refuted by the facts in this case.

4.  Although the ADRB voted to upgrade the reason for the applicant's
separation characterization, the RE-3 code assigned to him was the proper
code for members separating for commission of a serious offense.
Therefore, the applicant's reenlistment code was correct at the time of his
separation.

5.  By regulation, the RE code assigned to members separated by reason of
Secretarial Authority is established in the directive authorizing the
separation.  In this case, the authorizing directive for separation is the
ADRB action.  Absent any evidence of error or injustice that would warrant
further relief, the RE-3 code now assigned the applicant remains valid.


6.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

7.  The applicant is advised that although no further change to his RE code
is recommended, this does not mean he is being denied reenlistment.  While
RE-3 does apply to persons who are not considered fully qualified for
reentry or continuous service; there are provisions that provide for a
waiver of the disqualification.  If he desires to reenlist, he should
contact a local recruiter to determine his eligibility.  Those individuals
can best advise a former service member as to the needs of the Army at the
time, and are required to process RE code waivers.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___ps___  __lh ____  ___ym___  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.





                                  _____Paul Smith   ______
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20040006338                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005/08/30                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1992/02/26                              |
|DISCHARGE AUTHORITY     |AR 635-200, para 5-3                    |
|DISCHARGE REASON        |Secretarial Authority                   |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  7    |100.0600/RE                             |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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