RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  3 April 2007
	DOCKET NUMBER:  AR20060010114 


	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. Gerard W. Schwartz

Acting Director

Mr. Michael J. Fowler

Analyst

The following members, a quorum, were present:


Mr. Samuel Crumpler

Chairperson

Mr. Robert Rogers

Member

Mr. Patrick H. McGann Jr.

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 separation code or reentry (RE) code on his DD Form 214 (Certificate of Release or Discharge from Active Duty) with the period ending 29 July 1992 be changed.  He requests that the rank on his DD Form 214 be corrected.  He further requests that his name be corrected on his DD Form 215 (Correction to DD Form 214, Report of Separation from Active Duty) dated 9 February 2006.

2.  The applicant states, in effect, that he accepts responsibility for failing a drug test.  He states that since that time he has taken corrective measures in being more responsible.  The applicant further states that his separation was severely harsh considering Soldiers committing the same offense after him were allowed to stay in the military.

3.  The applicant continues that he has completed additional counseling classes and works with different organizations to help others with substance abuse issues.  He further states that he wishes to have his RE code changed to show that he once again can become an effective Soldier and addiction counselor.

4.  The applicant provides his DD Form 214; a DD Form 215; a Mississippi Association of Addiction Professionals (Addiction Counselor Training Core Course) completion certificate, dated 11 February 2006; and five letters of support from fellow associates.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 29 July 1992.  The application submitted in this case is dated 13 July 2006.
 
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 enlisted in the Regular Army on 24 November 1987 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 31M (Multi-Channel Communications System Operator).  
4.  On 29 April 1992, the applicant received general counseling for being positive on a urinalysis test.

5.  On 18 May 1992, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for wrongful use of marijuana.  His punishment consisted of reduction to Private (PVT)/E-1, a forfeiture of $350.00 per month for two months, 45 days extra duty, and 45 days restriction.

6.  On 17 June 1992, the applicant’s commander initiated elimination of the applicant under the provisions of Army Regulation 635-200, chapter 14 for commission of a serious offense – abuse of an illegal drug (Marijuana).  The reason cited by the commander was the applicant's positive urinalysis tests for THC (marijuana).  The applicant was advised of his rights.

7.  On 24 June 1992, the applicant was advised by consulting counsel of the basis for the contemplated separation action.  The applicant was advised of the impact of the discharge action.  He waived consideration of his case by a board of officers.  The applicant also indicated that he would not provide statements on his own behalf.

8.  On 14 July 1992, the appropriate authority approved the recommendation and directed the applicant receive a discharge under honorable conditions under the provisions of chapter 14 of Army Regulation 635-200 for misconduct - commission of a serious offense.  On 29 July 1992, he was separated with 4 years, 8 months, and 6 days of creditable active service and had no lost time.  Item 4.a (Grade, Rate or Rank) of his DD Form 214 shows the entry "PV2," item 4.b (Pay Grade) shows the entry "E-1," item 26 (Separation Code) shows the entry "JKQ," and item 27 (Reentry Code) shows the entry "3." 

9.  The applicant provided five letters of support from fellow associates who all state that they have known the applicant for some time.  The letters state that the applicant is a man of good character, reliable, and is excellent with people.  

10.  The applicant provided a certificate that shows he successfully completed the Mississippi Association of Addiction Professionals (Addiction Counselor Training Core Course). 

11.  Item 1 (Name) of the applicant's DD Form 214 shows his first name as Joxx. 

12.  Item 1 (Name) of the applicant’s DA Form 2-1 (Personnel Qualification Record) shows his first name as Joxx.

13.  Item 1 (Name) of the applicant's DD Form 215 shows the entry for his first name as Joxx.

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, convictions by civil authorities, and desertion or absence without leave.    

15.  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.  Additionally, the SPD/RE Code Cross Reference Table establishes RE-3 as the proper reentry code to assign to Soldiers when the SPD is JKQ.  

16.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  Table 3-8 of the regulation states that RE-3 applies to a Soldier who is not considered fully qualified for reentry or continuous service at time of separation, but the disqualification is waivable.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he needs his RE code changed on his DD Form 214 in order to reenter military service.  However, the ABCMR does not change reentry codes solely to allow former Soldiers to reenter military service.  

2.  The applicant's post service conduct is noteworthy.  However, records show the applicant was discharged with a separation code of "JKQ" (Misconduct) and was assigned a RE code of RE-3 in accordance with the governing regulation in effect at the time.

3.  The evidence of record confirms that the applicant’s separation processing was accomplished in accordance with the applicable regulations, to include the RE-3 code assignment.  Lacking independent evidence to the contrary, the Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Therefore, the Board concludes that the assigned RE-3 code was appropriate.  

4.  However, this does not mean that the applicant has been completely denied the opportunity to reenlist.  Since he is eligible to apply for a waiver, he has the option of visiting his local recruiting station and consulting with recruiting personnel who are required to process a waiver request.
5.  The applicant's DD Form 214 with the period ending 29 July 1992 erroneously shows his rank as PV2.  Evidence of record shows he was reduced to the rank of PV1 on 18 May 1992.  

6.  The applicant's DD Form 215 dated 9 February 2006 erroneously shows his first name as Joxx.  The applicant's DD Form 214 and DA Form 2-1 confirm that his DD Form 215 is incorrect and should be corrected to reflect the first name Joxx on his DD Form 215.

7.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 29 July 1992; therefore, the time for the applicant to file a request for correction of any error or injustice expired 28 July 1995.  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 

__SC ___  __RA ___  ___PHM_  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial 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:

	a.  deleting the entry "PV2" in item 4.a of his DD Form 214; 
	
	b.  amending item 4.a of his DD Form 214 to show "PV1"; 

	c.  deleting the first name, in item 1 of the DD Form 215; and 

	d.  amending item 1 of the DD Form 215 to show the correct spelling of the individuals first name. 


2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to changing his separation code or RE code on his DD Form 214.





____ Samuel Crumpler___
          CHAIRPERSON




INDEX

CASE ID
AR20060010114
SUFFIX

RECON

DATE BOARDED
3 APRIL 2007
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
PARTIAL GRANT 
REVIEW AUTHORITY
MR. SHATZER
ISSUES         1.
100.0100.0000
2.
100.0300.0000
3.

4.

5.

6.