RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          28 October 2004
      DOCKET NUMBER:  AR2004103054


      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. Rosa M. Chandler              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Raymond J. Wagner             |     |Chairperson          |
|     |Mr. Lawrence Foster               |     |Member               |
|     |Ms. Marla J. N. Troup             |     |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 eligibility (RE)
code of RE-3 and his Separation Code of "JKK" be changed to codes that will
allow reenlistment.

2.  The applicant states, in effect, that at the time of separation he was
advised that he could reenlist in the military after being separated for 2
years.

3.  The applicant provides a copy of his DD Form 214 (Certificate of
Release or Discharge from Active Duty), issued on 30 August 1988, in
support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 30 August 1988.  The application submitted in this case is
dated 5 January 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 limitation 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.  Prior to the period of service under review the applicant served
honorably in the Regular Army (RA) from 24 September 1975 to 23 September
1978 and from
11 October 1979 to 13 April 1982 until he was separated for immediate
reenlistment.

4.  On 14 April 1982, the applicant reenlisted for 6 years, in his previous
military occupational specialty (MOS) 11B, and in pay grade E-6.

5.  On 26 February 1985, he was assigned to Fort Benning, Georgia with
duties as an instructor.  On 7 March 1987, he was assigned drill sergeant
responsibilities.

6.  On 28 September 1987, while serving in a drill sergeant status, the
applicant tested positive for Tetrahydrocannabinol (THC), a psychoactive
compound found in marijuana, during a unit urinalysis testing.

7.  On 26 April 1988, the applicant was notified that a board of officers
would convene to determine whether he should be discharged because of
misconduct before the expiration of his term of service.  On the same date,
the applicant acknowledged notification.

8.  On 27 May 1988, the applicant appeared before the board with counsel.
During the board proceedings, the applicant denied using illegal drugs.  He
revealed that he had experienced personal problems that resulted in a
divorce and affected his duty performance.  He realized his duty
performance was being affected and requested relief from drill sergeant's
status.  However, his request was denied, because the unit needed him.

9.  On the same date, the board determined the applicant was undesirable
for further retention in the service because of his use of illegal drugs.
The board recommended that the applicant be separated from the service
because of misconduct (abuse of illegal drugs) with an honorable discharge
(HD).

10.  On 11 August 1988, the final approval authority approved the findings
and recommendation of the board and directed that the applicant be
separated for misconduct (abuse of illegal drugs) with a HD.

11.  The applicant’s DD Form 214 shows that on 30 August 1988, he was
separated under the provisions of chapter 14, Army Regulation 635-200 for
misconduct–drug abuse with a HD.  He had completed 8 years, 10 months and
20 days of net active service this period.  He had also completed 3 years
of total prior active service.  He was assigned a separation code of “JKK”
and an RE code of RE-3.

12.  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 enlisting and
processing into the RA, as well as the eligibility of prior service
applicants for enlistment.  That chapter includes a list of Armed Forces RE
codes and RA codes.

13.  A RE code of RE-3 applies to persons not qualified for continued Army
service; however, the disqualification is waivable.  A separation code of
"JKK" applies to persons separated due to misconduct-drug abuse.  Local
recruiting personnel have the responsibility of determining whether an
individual meets the current enlistment criteria and of processing requests
for waiver, if appropriate.

14.  Army Regulation 635-200 sets 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, to include abuse of illegal drugs,
convictions by civil authorities and desertion or absence without leave.
Action will be taken to separate a member for misconduct when it is clearly
established that rehabilitation is impractical or unlikely to succeed.
Army policy states that a discharge under other than honorable conditions
is normally considered appropriate, but a general discharge under honorable
conditions or an honorable discharge may be granted.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's discharge proceedings were conducted in accordance with
applicable law and regulations.  Given the reason for separation, his
separation code and RE code are correct.  He has provided no evidence or
basis for changing these codes.

2.  Local recruiting personnel have the responsibility for determining
whether an individual meets the current enlistment criteria and that
recruiting personnel are required to process a request for waiver.  There
is no evidence that the applicant has ever requested such a waiver.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 30 August 1988; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
29 August 1991.  However, the applicant did not 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 timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__rjw___  __lf____  __mjnt____  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.



                                  Raymond J. Wagner
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004103054                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041028                                |
|TYPE OF DISCHARGE       |(HD)                                    |
|DATE OF DISCHARGE       |19880830                                |
|DISCHARGE AUTHORITY     |AR635-200, Chap 14                      |
|DISCHARGE REASON        |A60.00                                  |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.6000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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