RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        11 August 2005
      DOCKET NUMBER:  AR20040010718


      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. Judy L. Blanchard             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Ms. Deborah Jacobs                |     |Member               |
|     |Mr. Michael J. Flynn              |     |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, in effect, that his reentry (RE) code and
Separation Program Designator (SPD) code be upgraded.

2.  The applicant states, in effect, that he served his country honorably
with only one adverse action against him.  He states, that he is an
excellent Soldier and feels that he was unjustly punished by his former
company commander.

3.  The applicant provides a copy of his separation document (DD Form 214)
in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or
injustice, which occurred on 17 March 1989, the date he was separated from
active duty.  The application submitted in this case is dated 18 November
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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant’s record shows he enlisted in the Regular Army and
entered active duty on 5 November 1985 for a period of 4 years.  He was
trained in, awarded and served in military occupational specialty (MOS)
75D10 (Personnel Records Specialist) and the highest rank he attained while
serving on active duty was Specialist pay grade E-4.

4.  On 30 January 1989, the applicant accepted nonjudicial punishment for
the wrongful use of Marihuana.  His imposed punishment was a reduction to
pay grade E-2, a forfeiture of $390.00 pay for 2 months (suspended for 4
months; to be automatically remitted if not vacated by 30 May 1989), 30
days extra duty and 30 days restriction.

5.  The facts and circumstances pertaining to the applicant’s discharge
proceedings are not in his Military Personnel Records Jacket (MPRJ).
However, the MPRJ does contain separation document (DD Form 214) that
contains the authority and reason for the applicant’s discharge.  The
applicant authenticated this document with his signature indicating he was
discharged under the provisions of Army Regulation 635-200, chapter 14, the
character of service was general under honorable conditions and that the
reason for discharge was misconduct-abuse of illegal drugs.

6.  Item 26 (Separation Code) of the applicant’s DD Form 214 shows that he
was assigned a SPD code of JKK and Item 27 (Reentry Code) shows that he was
assigned an RE code of RE-3/3C.  The applicant authenticated the DD Form
214 with his signature in Item 21 (Signature of Member Being Separated).

7.  On 7 March 1989, the applicant was discharged after completing 3 years,
4 months, and 13 days of active military service.

8.  On 30 June 1998, the Army Discharge Review Board (ADRB) upgraded the
applicant’s characterization of service to honorable and the narrative
reason for separation to misconduct.

9.  Army Regulation 635-200 sets forth the policy for the separation of
enlisted personnel.  Chapter 14 establishes policy and prescribes
procedures for separating members by reason of misconduct.  Specific
categories include minor disciplinary infractions, a pattern of misconduct,
commission of a serious offense, conviction by civil authorities, desertion
or absence without leave.  Action will be taken to separate a member for
misconduct when it is clearly established that rehabilitation is
impracticable or is unlikely to succeed.

10.  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.  The SPD code of
JKK (drug abuse rehabilitation failure) the SPD/RE Code Cross Reference
Table establishes that RE-3 as the proper reentry code to assign soldiers
separated under these circumstances.

11.  Pertinent Army regulations provide 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.  Army Regulation 601-210
covers eligibility criteria, policies, and procedures for enlistment and
processing into the Regular Army (RA) and the US 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-3/3c applies to persons not qualified for
continued Army service, but the disqualification is waivable.
12.  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 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 ABCMR should commence on the date of
final action by the ADRB.  In complying with this decision, the Board 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 applicant’s contentions were carefully considered, although, the
applicant’s record is void of the specific facts and circumstances
surrounding his discharge processing; it does contain a properly
constituted DD Form 214 that identifies the reason and characterization of
the applicant’s discharge.  The applicant’s record show that he was
originally discharged on 17 March 1989, under the provisions of Army
Regulation 635-200, chapter 14, for misconduct –abuse of illegal drugs.
The character of service was general under honorable conditions with a
reentry code of RE-3/3c.  On 30 June 1998, after reviewing the applicant’s
records the ADRB determined that the characterization of service should be
upgraded to honorable and the narrative reason changed to misconduct.

2.  Although, the applicant believes that he was an excellent Soldier and
was unjustly punished.  The applicant’s record shows that he violated the
Army’s policy of not to possess or use illegal drugs, which compromised the
trust and confidence placed in a Soldier.  The applicant as a Soldier had a
duty to support and abide by the Army’s drug policies.  By abusing illegal
drugs, the applicant risked a military career.  Therefore, there is no
evidence nor has the applicant presented any evidence to warrant relief
beyond that already provided by the ADRB.

3.  By regulation, the proper RE code assignment for members separated
under provisions that authorize an assignment of the SPD code of JKK is RE-
3/3c.

4.  The applicant is advised that although his RE code has not been
upgraded, this does not mean that he is disqualified from 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.  Therefore, if he still 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 waivers of RE codes.

5.  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.

6.  Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 30 June 1998.  As a
result, the time for him to file a request for correction of any error or
injustice to this Board expired on 29 June 2001.  However, he failed to
file within the 3-year statute of limitations and has not provided a
compelling explanation or evidence to show that it would be in the interest
of justice to excuse failure to file in this case.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___DJ  __  ___JS___  ___MJF _  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:


1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                      _____John Slone______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040010718                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050811                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(NC, GRANT , DENY, GRANT PLUS)          |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]