IN THE CASE OF:	  

		BOARD DATE:	  25 September 2008

		DOCKET NUMBER:  AR20080011668 

THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his Reentry (RE) Code on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed from 
“RE-4".

2.  The applicant states, in effect, that he should be able to reenlist in the Army.

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

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant’s record shows that he enlisted in the Regular Army and entered active duty on 9 March 2001.  He was trained in, awarded, and served in military occupational specialty (MOS) 88M (Motor Transport Operator) and the highest rank he attained while serving on active duty was Specialist (E-4).  
3.  The applicant’s military record reveals a disciplinary history that includes his acceptance of nonjudicial punishment for being absent without leave (AWOL) from 25 December 2003 through 25 March 2004, for wrongfully using Marijuana a Schedule I controlled substance, for fleeing apprehension by accelerating past the MP checkpoint after being stopped by the Military Police on 28 May 2004, and for disorderly conduct on 28 May 2004.  His punishment was reduction to the grade of Private (E-1), a forfeiture of $597.00 pay for two months, extra duty for 45 days, and restriction for 45 days.

4.  The applicant's records also show that he received ten General Counseling statements during the period 26 March 2004 through 22 October 2004 for various offenses to include AWOL, revocation of pass privileges, revocation of driving privileges, disrespect to a noncommissioned officer, and assault against another Soldier.

5.  On 2 August 2004, a mental and a physical evaluation cleared the applicant for any administrative action deemed appropriate. 

6.  On 19 October 2004, the applicant was notified by his unit commander that separation action was being initiated against him under the provisions of chapter 
14 -12c (2), Army Regulation 635-200, by reason of Misconduct- Abuse of Illegal Drugs, with a discharge under honorable condition.  The reason for the proposed action was the applicant’s wrongful use of Marijuana.

7.  On the same day, the applicant acknowledged receipt of the proposed action against him and consulted with legal counsel.  He was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to him, and the effect of any action taken by him in waiving his rights.  Subsequent to receiving this counseling, the applicant completed his election of rights by waiving his right to have his case considered by an administrative separation board, and declined to submit statements in his own behalf.  

8.  On 3 November 2004, the separation authority approved the applicant’s request for discharge and directed that he receive general under honorable conditions discharge.








9.  On 9 November 2004, the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 14 -12c, (2) by reason of misconduct (Abuse of Illegal Drugs), with a discharge under honorable conditions.  The separation document (DD Form 214) he was issued at the time confirms that he held the rank of private/E-1 (PV1), and had completed a total 3 years, 8 months and 
1 day of active military service.  The DD Form 214 also shows 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.  

10.  The applicant authenticated his 9 November 2004 DD Form 214 with his signature in Item 21 (Signature of Member Being Separated).  There is no indication that he questioned the SPD or RE codes listed on the separation document at that time.  

11.  Army Regulation 635-200 sets forth the policy 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 serious offense, conviction by civil authorities, desertion, or absences 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.  Army policy states that a discharge under other than honorable conditions is normally considered appropriate, but a general discharge under honorable conditions or an honorable discharge may be granted.

12.  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.

13.  Army Regulation (AR) 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.  The SPD code of JKK is the appropriate code to assign Soldiers separated under the provisions Army Regulation 635-200, chapter 14-12c, by reason of misconduct (Abuse of Illegal Drugs).  




DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions were carefully considered.  However, by regulation, the RE-4 code assigned to the applicant was the proper code to assign members separating under the provisions of Army Regulation 635-200, Chapter 14-12c for misconduct (Abuse of Illegal Drugs).  The applicant’s record shows that he violated the Army’s policy of not to possess or use illegal drugs, which compromised the trust and confidence placed in a Soldier.  The applicant as a Soldier had a duty to support and abide by the Army’s drug policies.  By abusing illegal drugs, the applicant risked his military career.  Therefore, there is no evidence nor has the applicant presented any evidence to warrant relief.  As a result, the RE-4 code and the narrative reason for separation were and still are appropriate.  

2.  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.  

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

4.  Therefore, 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.

BOARD VOTE:

________ ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_____X___  ____X____  ____X____  DENY APPLICATION






BOARD DETERMINATION/RECOMMENDATION:

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.



      __________X____________
                CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080011668



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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