RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        23 November 2005
      DOCKET NUMBER:  AR20050004676


      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. Joyce A. Wright               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Mr. Patrick H. McGann, Jr.        |     |Member               |
|     |Mr. Larry J. Olson                |     |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 reentry (RE) Code be change from a "4"
to a "3" so he can reenlist in the military and serve his country.

2.  The applicant states that he recently had his discharge reviewed by the
Army Discharge Review Board (ADRB).  His character of service was changed
from general (under honorable conditions) to honorable and his narrative
reason for separation was changed from misconduct to secretarial authority.
 He really wants to join the military because he has learned from his
mistakes and has matured a lot.  He has been running a lot ever since he
received information on his discharge being upgraded from general to
honorable.  He also states that he has worked and gone to college but the
military is where his heart wants to be.  His whole family was in the
Marines and he does not want to quit and will do whatever it takes to
reenter the service.  

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 10 October 2000, the date of his discharge.  The application
submitted in this case is dated 14 March 2005.

2.  The applicant’s military records show he entered active duty on 1 June
1999, as a cavalry scout (19D), in pay grade E-1, for a period of 4 years,
with an established expiration of term of service (ETS) date of 31 May
2003.  He was promoted to pay grade E-2, on 1 December 1999.

3.  On 10 March 2000, the applicant tested positive for marijuana.

4.  On 20 April 2000, the applicant was counseled regarding the urinalysis
test conducted on 10 March 2000 and was informed that he would be punished
by Uniform Code of Military Justice (UCMJ) action.

5.  On 23 May 2000, the applicant was punished under Article 15, UCMJ, for
wrongful use of marijuana, a controlled substance.  His punishment
consisted of a reduction to E-1, forfeiture of pay, and 45 days extra duty
and restriction.

6.  The applicant was convicted by one summary court-martial on 11 August
2000 of being absent without leave (AWOL) from 2 June to 1 July 2000.  His
sentence consisted of confinement for 30 days.

7.  On 22 August 2000, the applicant's commander initiated action to
separate him from the service under the provisions of Army Regulation 635-
200, chapter 14, paragraph 14-12c, for misconduct-commission of a serious
offense.  He based his recommendation on the applicant’s Article 15 for
wrongful use of marijuana and conviction by a summary court-martial for
AWOL from 2 June to 1 July 2000.  After consulting with counsel, the
applicant waived his rights and elected not to submit a statement in his
own behalf.

8.  On 23 August 2000, the Chief of Administrative Law reviewed the
original record in the court-martial case pertaining to the applicant
pursuant to rules for court-martial.  Base on his review, he concluded
that:

      a.  The court-martial had jurisdiction over the applicant and each
offense as to which there was a finding of guilty that had not been
disapproved;

      b.  Each specification as to which there was a finding of guilty that
had not been disapproved stated an offense;

      c.  The sentence was legal; and

      d.  There were no allegations of error made by the applicant.

9.  On 8 September 2000, the commander submitted his recommendation to
separate the applicant from the Army, under the provisions of AR 635-200,
paragraph 14-12c, misconduct-commission of a serious offense.  He
recommended that the applicant be separated prior to his ETS and given a
general discharge (GD) (under honorable conditions).

10.  The separation authority, a colonel (COL/O-6), approved the
recommendation for discharge on 21 September 2000 and directed that he be
issued a GD Certificate.  The applicant was discharged on 10 October 2000
in pay grade of E-1.  He had a total of 1 year, 2 months, and 21 days of
creditable service and had 49 days of lost time due to AWOL and
confinement.

11.  The applicant applied to the ADRB for an upgrade of his discharge on
14 October 2004.  The ADRB carefully examined the applicant's entire record
of service during the period of enlistment under review.  The ADRB noted
that the unit commander used "Board Procedures" when notifying the
applicant that he was initiating action to separate him under the
provisions of, Chapter 14, Army Regulation, by reason of misconduct.  The
ADRB stated that by using the "Board Procedures" the authority for approval
of the applicant's separation rested with the General Court-Martial
convening authority.  The evidence of record shows that the applicant's
separation action was improperly approved at the Special Court-Martial
Convening Authority level.  In view of the foregoing, the ADRB determined
that the discharge was improper.  Accordingly, the Board voted unanimously
to grant relief in the form of an upgrade of characterization of service to
fully honorable and unanimously to change the narrative reason for
separation to Secretarial Authority.  This action, the ADRB determined, did
not entail a change to the RE Code.

12.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Section III of the regulation pertains
to authority to order and accomplish separation.  Paragraph 1-19 covers the
authority to order separation prior to expiration of term of service (ETS).
 Subparagraph 1-19c states, in pertinent part, that commanders who are
special court-martial convening authorities are authorized to order the
separation or release from active duty (AD) or ADT, under chapter 14, when
discharge under other than honorable conditions is not warranted and the
notification procedure is used.  An honorable discharge may be ordered only
when the commander exercising general court-martial jurisdiction has
authorized the separation.

13.  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, and convictions by civil authorities.  Action will be taken to
separate a member for misconduct when it is clearly established that
rehabilitation is impracticable or is unlikely to succeed.  A discharge
under other than honorable conditions is normally appropriate for a soldier
discharged under this chapter.

14.  Paragraph 14-12c(2) provides for separation for commission of a
serious offense such as abuse of illegal drugs.  

15.  Pertinent Army regulations provide that prior to discharge or release
from active duty, individuals will be assigned reentry 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. This chapter includes a list of Armed Forces
reentry codes, including RA RE codes.

16.  RE-4 applies to persons not qualified for continued service by virtue
of being separated from the service with non-waivable disqualification such
as misconduct.

17.  RE-3 applies to persons not qualified for continued Army service, but
the disqualification is waivable.  Certain persons who have received
nonjudicial
punishment are so disqualified, as are persons with bars to reenlistment,
and those discharged under the provisions of chapter 9, 10, 13, 14, and 16
of Army Regulation 635-200.

18.  Army Regulation 635-5-1, in effect at that time, prescribed the
specific authorities (regulatory, statutory, or other directives), the
reasons for the separation of members from active military service, and the
separation program designators to be used for these stated reasons.  The
regulation shows that the separation program designator (SPD) "JKK", as
shown on the applicant’s DD Form 214, is appropriate for discharge when the
narrative reason for discharge is
"misconduct, commission of a serious offense, abuse of illegal drugs" and
that the authority for discharge under this SPD is "Army Regulation 635-
200, chapter 14, paragraph 14-12c(2)."  The SPD code of "JFF" is
appropriate for involuntary release from active duty when the narrative
reason for separation is "Secretarial authority" and the authority for
discharge under this SPD is "Army Regulation 635-200, paragraph 5-3."

19.  The SPD/RE Code Cross Reference Table provides instructions for
determining the RE code for Active Army Soldiers and Reserve Component
Soldiers separated for cause.  It also shows the SPD code with a
corresponding RE code and states that more than one RE code could apply.
The Soldier’s file and other pertinent documents must be reviewed in order
to make a final determination.  The SPD code of "JKK" has a corresponding
RE code of "4" and the SPD Code of "JFF" has a corresponding RE Code that
is to be determined by appropriate authorities directing the change.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was discharged under honorable conditions under the
provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c(2), for
misconduct.  He was assigned the appropriate RE Code of "4" based on
regulatory guidance.

2.  The applicant applied to the ADRB for an upgrade of his discharge.  The
ADRB carefully examined the applicant's entire record of service during the
period of enlistment under review.  The ADRB noted that the unit commander
used "Board Procedures" when notifying the applicant that he was initiating
action to separate him under the provisions of, Chapter 14, Army Regulation

635-200, by reason of misconduct.  The ADRB stated that by using the "Board
Procedures," the authority for approval of the applicant's separation
rested with the General Court-Martial convening authority.

3.  The evidence of record shows that the applicant's separation action was
improperly approved at the Special Court-Martial Convening Authority level.
 In view of the foregoing, the ADRB determined that the applicant's
discharge was improper and it voted unanimously to grant relief in the form
of an upgrade of characterization of service to fully honorable and
unanimously voted to change the narrative reason for separation to
Secretarial Authority.  The ADRB determined this action did not entail a
change to the RE Code.

4.  According to applicable regulation, commanders who are special court-
martial convening authority are authorized to order separation or release
from AD or ADT under chapter 14, when a separation under other than
honorable conditions is not warranted.  An honorable discharge may be
ordered when the commander exercising general court-martial jurisdiction
has authorized the separation.  However, the approving authority for the
applicant's under honorable conditions discharge was a COL/O-6 who was not
the general court-martial convening authority.

5.  The Board believes that the applicant's attendant RE Code is
uncharacteristically harsh given the circumstances of his case and changes
made by the ADRB.

6.  Based on the foregoing, and in the interest of justice, it would be
appropriate to show that the applicant was issued an RE Code of "3"
consistent with the changes approved by the ADRB.  Therefore, it would be
appropriate to change item 27 (Reentry Code) to show a reentry code of "3."

BOARD VOTE:

_JS_____  __PM___  __LJO___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief and to excuse failure to timely file.  As a
result, the Board recommends that all Department of the Army records of the
individual concerned be corrected by showing a code of "3" in item 27
(Reentry Code), of the applicant's DD 214.




                            ______John Slone_____
                                      CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050004676                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051123                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |20001010                                |
|DISCHARGE AUTHORITY     |AR 635-200, chapter 14-12© 2 . . . . .  |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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