RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 MARCH 2007
      DOCKET NUMBER:  AR20060010763


      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      |
|     |                                  |     |Analyst              |

      The following members, a quorum, were present:

|     |                                  |     |Chairperson          |
|     |                                  |     |Member               |
|     |                                  |     |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 records be corrected by changing his
DD Form 214 (Certificate of Release or Discharge from Active Duty) item 24,
Reentry Code (RE) from a "4" to one that would allow him to reenlist.

2.  The applicant states that his RE code "4" was unjust because it was
based on one incident 13 years ago, and prevents him from reenlisting.  He
feels he should be allowed to reenlist and serve his country as an older
more mature person.

3.  The applicant provides a statement concerning his desire to reenlist in
the Army.  He describes his post service conduct of having distributed
currency from the Federal Reserve in Detroit, his work with the Federal
Protective Service as an armed security officer, his service to the
community as a firefighter, and his current position as a Transportation
Security Officer with the Department of Homeland Security, in support of
his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 15 March 1994.  The application submitted in this case is dated
27 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 12 November 1992, for a
period of 3 years.

4.  On 24 January 1994, he received nonjudicial punishment under the
provisions of Article 15, Uniform Code of Military Justice for the wrongful
use of hashish.

5.  On 28 February 1994, he was informed by his commander that he was
initiating action to separate him under the provisions of Army Regulation
635-200, Chapter 14, for misconduct-commission of a serious offense/abuse
of illegal drugs.
6.  On 15 March 1994, the applicant was separated under the above cited
regulation, with a general, under honorable conditions discharge.  His DD
Form 214 shows he had 1 year, 4 months and 4 days of active service, and
was assigned the separation code of JKK and the RE code of “4.”

7.  On 7 My 2003, the Army Discharge Review Board (ADRB) reviewed the
applicant's case and determined that partial relief was warranted.  The
ADRB noted that while it did not condone the applicant's misconduct it was
determined his characterization of service was inequitable.  The ADRB
determined that the applicant's misconduct was mitigated by post service
accomplishments of sufficient merit to warrant upgrading his discharge.
The ADRB voted to upgrade the applicant's characterization of service to
honorable.  However, the ADRB determined that the reason for his discharge
was proper and equitable and voted not to change it.  The ADRB further
determined that at the time of his separation for abuse of illegal drugs he
was properly assigned the RE code of “4.”

8.  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, conviction 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 is unlikely to succeed.

9.  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 United States Army Reserve.
Chapter 3 of that regulation prescribed basic eligibility for prior service
applicants for enlistment.  That chapter includes a list of armed forces RE
codes, including RA RE codes.

10.  RE-4 applies to individuals who were separated from their last period
of service with a non-waivable disqualification.

11.  Army Regulation 635-5-1 states that SPD codes are three-character
alphabetic combinations, which identify reasons for, and types of
separation from active duty.  The primary purpose of SPD codes is to
provide statistical accounting of reasons for separation.  They are
intended exclusively for the internal use of DOD and the military services
to assist in the collection and analysis of separation data.  It notes that
JKK is the appropriate SPD code for individuals separated for misconduct.
12.  A "cross-reference" table, provided by officials from Separations
Branch at the U.S. Army Human Resources Command-Alexandria, confirms that
RE-4 is the appropriate RE code for individuals who are separated with an
SPD code of JKK.

13.  Army Regulation 601-210, which establishes the policies and provision
for enlistment in the Regular Army and United States Army Reserve, states
that
RE codes may be changed only if they are determined to be administratively
incorrect.

14.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence confirms that the applicant’s RE code was assigned based
on the fact that he was not qualified for continuous service at the time of
separation. The applicant’s RE code was and remains appropriate considering
the basis for his separation.

2.  The ADRB upgraded the applicant's character of service to honorable.
However, the board found that the reason for his discharge, misconduct, was
both proper and equitable.  The ADRB also determined that at the time of
the applicant's separation, as a result of his abuse of illegal drugs, he
was properly assigned the RE code of “4.”

3.  There is no reason to change the applicant's reentry code as listed on
his
DD Form 214.  The fact that he has worked in the Federal Civil Service,
that he may now want to return to military service, and that he is more
mature is not sufficient justification to change his RE code.



4.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

5.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 7 May 2003.  As a
result, the time for the applicant to file a request for correction of any
error or injustice to this Board expired on 6 May 2006.  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

__KN ___  ___DH   _  ___LD___  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.



                                  _______
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20060010763                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20070320                                |
|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.       |112.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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