RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 September 2006
      DOCKET NUMBER:  AR20050017728


      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. James E. Anderholm            |     |Chairperson          |
|     |Ms. Maribeth Love                 |     |Member               |
|     |Mr. Thomas M. Ray                 |     |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 be
changed from RE-4 to an acceptable reenlistment code.

2.  The applicant states, in effect, that the circumstances of his
discharge involves a positive result on a urinalysis for Marijuana after
returning to duty from Christmas exodus, in 1997.  His punishment included
nonjudicial punishment (NJP), 30 days restriction, a substantial fine, and
to attend drug and alcohol counseling.  He states that he did what was
required of him and he went to his permanent duty station with no
ramifications to his character or job.  However, after he arrived at Fort
Hood, Texas, he was notified that his security clearance would be retracted
and that he would need to be reclassified into another military
occupational specialty (MOS).  He states that this was a surprise to him
because he had received two promotions and had no other disciplinary action
of any kind. He did not want to work in a job that he did not enlist for,
so he requested a discharge.  He states that he understands there had to be
a reason for his discharge; however, he believes that not having this
status should be enough for reenlistment.  He believes that the restriction
placed on him seems extraordinary. He just wants to provide a better life
for his family and not have this regret destroy the future his family
deserves.

3.  The applicant provides no additional documentary evidence in support of
his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 3 August 1999.  The application submitted in this case is
dated
30 November 2005.

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 8 October 1997 for a period of 4 years.  On 20
December 1997, he completed Basic Combat Training (BCT).

4.  In January 1998, while in Advanced Individual Training (AIT), at
Redstone Arsenal, Alabama, the applicant was administered a urinalysis as
part of a 100% unit level drug test.  The applicant’s urine sample tested
positive for the presence of Marijuana.  The applicant was administered his
rights and was informed that any use of illegal substances is considered a
serious offense.

5.  On 28 January 1998, the applicant accepted NJP for the wrongful use of
Marijuana.  His imposed punishment was a forfeiture of $216.00 pay per
month for 2 months, and 30 days restriction and extra duty.

6.  On 3 June 1998, the applicant successfully completed 24 weeks of AIT
and was awarded MOS 27E10 (Land Combat Electronic Missile System Repairer).
 The highest rank he attained while serving on active duty was pay grade E-
3.

7.  On 25 June 1999, while assigned to a unit at Fort Hood, Texas, the unit
commander notified the applicant that he was initiating separation action
on him under the provisions of chapter 14, Army Regulation 635-200, by
reason of misconduct – commission of a serious offense, with a discharge
under honorable conditions.

8.  On 29 June 1999, the applicant consulted with legal counsel and was
advised of the basis for the contemplated separation action and its
effects, and of the rights available to him.  The applicant acknowledged
that he understood that he may encounter substantial prejudice in civilian
life if a discharge less than honorable was issued to him.  After being
advised of the impact of the discharge action, he waived consideration,
personal appearance, and representation before a board of officers.  The
applicant did not submit a statement in his own behalf.

9.  On 20 July 1999, the intermediate commander reviewed the proposed
discharge action and recommended approval of the separation action with a
discharge under honorable conditions.

10.  On 23 July 1999, the separation authority waived further
rehabilitative efforts and directed that the applicant be discharged under
the provisions of Army Regulation 635-200, chapter 14-12c (2), for
misconduct and directed that the applicant’s service be characterized as
general, under honorable conditions.  On 3 August 1999, the applicant was
discharged accordingly.

11.  The separation document (DD Form 214) he was issued at the time
confirms he was separated under the provisions of paragraph 14-12c (2),
Army Regulation 635-200, by reason of misconduct after completing a total
of 1 year, 9 months, and 26 days of active military service.  This document
also confirms that based on the authority and reason for his separation, he
was assigned a Separation Program Designator (SPD) code of JKK and an RE
code of RE-4.  The applicant authenticated the DD Form 214 with his
signature in Item 21 (Signature of Member Being Separated).

12.  Army Regulation 635-200 sets forth the policy for the separation of
enlisted personnel.  Chapter 14 establishes policy and prescribes
procedures for separating members because 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.

13.  Army Regulation 635-5-1 identifies the SPD code of JKK, as the
appropriate code to assign members separated under the provisions of
chapter 14, Army Regulation 635-200, by reason of misconduct.  The SPD/RE
Code Cross Reference Table of the regulation establishes RE-4 as the proper
reentry code to assign Soldiers separated under these circumstances.

14.  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-4 applies to persons who are permanently
disqualified for continued Army service.

15.  On 14 February 2003, the Army Discharge Review Board (ADRB) denied the
applicant’s request for an upgrade of his discharge.

16.  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.  However, this case
specifically pertains to change of a reentry code, which the ADRB did not
previously address through their discharge review proceedings.

DISCUSSION AND CONCLUSIONS:

1.  The contentions of the applicant were carefully considered.  However,
there was no evidence in his military record nor did the applicant provide
any evidence in support of his allegations.

2.  Therefore, based on the evidence of record, the RE-4 code assigned the
applicant was the proper code to assign members separating for use of
illegal drugs.  The SPD code of JKK is also the appropriate code to assign
to Soldiers separated under the provisions of Army Regulation 635-200,
chapter 14-12c(2), for misconduct.  The applicant’s DD Form 214, identifies
the reason and characterization of the applicant’s discharge.  The
applicant authenticated this document with his signature on the date of his
separation.  Therefore the RE-4 code and the narrative reason for
separation were and still are appropriate.

3.  The evidence of record confirms the applicant’s separation processing
was accomplished in accordance with the applicable regulation.  This
includes the assignment of his SPD and RE codes.  All requirements of law
and regulation were met and the rights of the applicant were protected
throughout the separation process.

4.  RE-4 applies to persons who are permanently disqualified for continued
Army service.

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 should have discovered the alleged error or
injustice now under consideration on 3 August 1999; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
2 August 2002.  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

___JEA__  __ML ___  __TMR__  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.




                                         James E. Anderholm____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR                                      |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2006/09/19                              |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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