RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22 November 2005
      DOCKET NUMBER:  AR20050000154


      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             |
|     |Mr. John J. Wendland, Jr.         |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Thomas A. Pagan               |     |Chairperson          |
|     |Mr. Eric N. Andersen              |     |Member               |
|     |Mr. Joe R. Schroeder              |     |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 Reenlistment (RE) Code be
changed.

2.  The applicant states, in effect, that he received an honorable
discharge with a code of RE-3 because he tested positive for cocaine.
However, he states that this is unjust because he did not use illegal
drugs.  He also states that he would like to rejoin his old unit, but the
RE-3 code that he received upon discharge prevents him from reentering the
Army National Guard.

3.  The applicant provides a self-authored statement; a letter from his
former battery executive officer, dated 7 July 2004; a memorandum from the
colonel in command of the Camp Blanding Training Site, Florida Army
National Guard, Starke, Florida, dated 11 June 2003; four drug/alcohol
laboratory certificates, dated 14 May 2004, 3 July 2003, 15 February 2002,
and 18 January 2001; a copy of a psychological evaluation, dated 29
February 2000; a copy of his NGB Form 22 (Report of Separation and Record
of Service), NGB Form 55 (Honorable Discharge Certificate), and Florida
National Guard, St. Augustine, Florida, Orders PO16-013, dated 16 January
2001, with an effective date of
1 February 2001; DA Form 2-1 (Personnel Qualification Record), DD Form 4
(Certificate of Release or Discharge from Active Duty), with an effective
date of
3 December 1982; and a copy of Administrative Separation Board Findings and
Recommendation Worksheet, dated 6 August 2000.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 1 February 2001, the date of his discharge from the Florida
Army National Guard.  The application submitted in this case is dated 19
December 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 records show that he enlisted in the Army National
Guard on 15 July 1982 and was awarded military occupational specialty (MOS)
13B (Cannoneer).  The applicant served continuously in the Florida Army
National Guard, attaining the rank of first sergeant/pay grade E-8, and was
honorably discharged on 1 February 2001 after serving 18 years, 6 months,
and 17 days.

4.  On 5 December 1999, while serving as battery first sergeant, Battery A,
2nd Battalion, 116th Field Artillery, Bartow, Florida, Soldiers of the unit
were administered a random urinalysis test.  The applicant's commander was
subsequently notified of the results of the test, which indicated that the
applicant's sample had 712.04 nanograms per milliliter of cocaine, and
administrative separation action was initiated.

5.  On 5 August 2000, an administrative separation board convened to
determine the findings and a recommendation regarding the applicant's
administrative separation action.  On 6 August 2000, the board found that
the applicant engaged in the use of illegal drugs; had failed to timely
enter into, or satisfactorily complete a drug rehabilitation program; and
was unqualified for further military service.  By majority vote, the board
recommended that the applicant be discharged and issued an Honorable
Discharge Certificate.

6.  The NGB Form 22 issued to the applicant upon his discharge from the
Florida Army National Guard shows the separation authority as National
Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), paragraph 8-
26e; an RE Code of RE-3; character of service as honorable; and that an
Honorable Discharge Certificate was issued.

7.  The applicant provides a memorandum from the commander of the Camp
Blanding Training Site in support of his request for waiver of RE Code, but
provides no other documentation regarding any action taken on his request
for waiver of his RE Code.  The applicant also provides a psychological
evaluation from his psychologist which summarizes the applicant's family
life and offers an interpretation regarding the likelihood of his drug use.
 In addition, he provides copies of drug/alcohol laboratory certificates
which show he has tested negative on four occasions since January 2001;
three of which were subsequent to his discharge from the Florida Army
National Guard.  The applicant also provides copies of documents relating
to his administrative separation board and honorable discharge.





8.  NGR 600-200, paragraph 8-26 provides, in pertinent part, that first-
time drug offenders in the grade of sergeant/pay grade E-5 and above, and
all Soldiers with 3 or more years of total military service, regardless of
component, must be processed for discharge with a RE Code of 3.   Table 8-1
(Definition of Reenlistment Codes) of this regulation shows that RE Code 3
will be assigned when a Soldier is eligible for reenlistment only with a
waiver.

9.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment
Program) provides, in pertinent part, that RE codes are used for
administrative purposes only, and that applicants should be advised that RE
codes are not to be considered derogatory in nature, they simply are codes
used for identification of an enlistment processing procedure.  This
document also provides procedures for the verification of an applicant's
prior service.  (Applicants who are former members of the Armed Forces are
categorized as prior service personnel.)  It states, in pertinent part,
that, "Applicants who are thought to have had, or who claim to have had,
prior service in any U.S. Armed Force will not be enlisted in the Regular
Army or U.S. Army Reserve until their prior service, if any, is verified".

10.  The governing Army regulation further provides that, prior service
Army personnel will be advised that RE codes may be changed only if they
are determined to be administratively incorrect.  Applicants who have
correct RE codes will be processed for a waiver at their request if
otherwise qualified and waiver is authorized.  No requirement exists to
change an RE code to qualify for enlistment.  Only when there is evidence
to support an incorrect RE code or when there is an administrative error
will an applicant be advised to request a correction.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE Code should be changed from RE-3 to
RE-1 because he wants to reenter the Army National Guard to continue
serving his country and the state of Florida.  He contends that he never
used illegal drugs and it is an injustice that he was discharged with over
18 years of service for testing positive for cocaine.  He further contends
that his separation proceedings are incorrect with regard to the issue of
entering into and completing a drug rehabilitation program because he did
receive a psychological evaluation.

2.  The applicant’s request for change to the RE-3 code he received in
conjunction with his discharge from the Army National Guard and the
supporting evidence he provided were carefully considered.
3.  The evidence of record shows that a psychological evaluation was
conducted on 29 February 2000.  However, there is no indication that the
applicant offered this document into evidence during his administrative
separation board proceedings, or that he offered any other evidence
regarding his entering into, or satisfactorily completing, a drug
rehabilitation program.

4.  The evidence of record shows that the applicant tested negative
regarding the use of drugs on several occasions since January 2001 and
indicates that he has been drug-free subsequent to his discharge.  While
the applicant's drug-free post-service record is commendable, it does not
overcome the act of misconduct which was the basis for his discharge from
the Florida Army National Guard.

5.  The evidence of record shows that the applicant’s separation processing
was accomplished in accordance with the applicable regulation and the
rights of the applicant were fully protected throughout the separation
process.  This Board also presumes administrative regularity in the
processing of the applicant's discharge.  There is nothing in the available
records or in anything submitted by the applicant to overcome that
presumption.  As a result, his separation was proper and equitable, and the
RE-3 code he received was appropriately assigned based on the authority and
reason for his separation.

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 change is being recommended
to his RE Code, this does not mean that he is disqualified from reentry
into the Army National Guard or the U.S. Army Reserve, as the RE-3 code he
was assigned is waivable.  If the applicant still desires to reenter the
Army National Guard, he should contact a local recruiter to determine his
eligibility and/or request assistance in processing a waiver through
appropriate administrative channels.  Those individuals can best advise a
prior service member as to the needs of the Army National Guard and are
required to process waivers of RE codes.

8.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 1 February 2001; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
31 January 2004.  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

__TAP __  __ENA __  __JRS __  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.




                                  ____THOMAS A. PAGAN_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050000154                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051122                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |20010201                                |
|DISCHARGE AUTHORITY     |NGR 600-200, Paragraph 8-26e            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |100.0300.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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