RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  21 September 2007
	DOCKET NUMBER:  AR20070001284 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Michael J. Fowler

Analyst

The following members, a quorum, were present:


Mr. Conrad V. Meyer

Chairperson

Mr. Dale E. DeBruler

Member

Ms. Ernestine I. Fields

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 4 on his DD Form 
214 (Certificate of Release or Discharge from Active Duty) with the ending period 15 May 1997 be changed to RE code 2.  

2.  The applicant states, in effect, that mistakes were made and time has passed. He wishes to enlist in the military and feels that the RE code he received was too harsh and unjust for his offense.  Since his separation from the military he quit smoking 7 years ago and has earned a Bachelor of Science degree.  He and his wife have been married for 21 years with 4 children and his family has a history of serving this country.

3.  The applicant provides his DD Form 214 and an Austin Peay State University Diploma, dated 10 May 2002.

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 enlisted in the Regular Army on 31 October 1979 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty (MOS) 11B (Infantryman) and was later awarded MOS 79R (Recruiter).

3.  On 22 July 1996, the applicant’s commander initiated elimination action on the applicant under the provisions of Army Regulation 635-200, chapter 14 for misconduct.  The reason cited by the commander was the applicant tested positive for methamphetamine.



4.  On 22 July 1996, 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.  The applicant signed a statement indicating that he was advised he was being recommended for discharge under the provisions of Army Regulation 635-200.  The applicant requested counsel, requested to be heard by a board of officers, and submitted a statement on his own behalf.

5.  The applicant stated, in effect, that he never knowingly or wantonly took amphetamine or methamphetamine.  To do so would be to jeopardize a stellar 
17 year career and the well being of his family.  He continued that prior to the urinalysis results he had taken over-the-counter medication for his weight and to stay alert during long trips.  "I believe that the combination of taking these two legal substances in such quantities caused the positive result during the urinalysis.  There can be no other explanation except complete failure of the Army Drug Testing Program which may not be out of the realm of possibility."

6.  A DA Form 1574 (Report of Proceedings by Investigating Officer (Board of Officers)) shows the board was held on 11 March 1997 and the board members recommended the applicant be separated for misconduct and be issued a General Under Honorable Conditions Discharge Certificate.

7.  On 3 April 1997, the appropriate authority approved the recommendation and directed the applicant receive a General Under Honorable Conditions Discharge Certificate.  On 15 May 1997, he was separated from the service after completing 17 years, 6 months, and 15 days of creditable active service in the Regular Army.

8.  The applicant's DD Form 214 with the period ending 15 May 1997 shows he was discharged under the provisions of paragraph 14-12c(2), Army Regulation 635-200, for misconduct; item 27 (Reentry Code) shows the entry "4"; and item 26 (Separation Code) shows a separation code of JKK.

9.  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.  Paragraph 14-12c(2) states that Soldiers are subject to separation for commission of a serious offense (abuse of illegal drugs) and that abuse of illegal drugs is serious misconduct.  

10.  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.  The SPD code of JKK was the 


appropriate code for the applicant based on the guidance provided in this regulation for Soldiers separating under the provisions of paragraph 14-12c(2), 
Army Regulation 635-200 (Enlisted Personnel), by reason of misconduct - drug abuse.  Additionally, the SPD/RE Code Cross Reference Table establishes RE code 4 as the proper reentry code to assign to Soldiers with an SPD of JKK.  

11.  RE code 4 applies to persons not qualified for continued Army service and the disqualification is non-waivable.

DISCUSSION AND CONCLUSIONS:

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

2.  Evidence of record shows that the applicant was separated from the service for misconduct under the provisions of Army Regulation 635-200, chapter
14-12c(2).  By regulation, this mandated that he be assigned an RE code 4 upon his separation from the Army.

3.  The evidence of record confirms that the applicant’s separation processing was accomplished in accordance with the applicable regulations, to include the RE code 4 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 code 4 was appropriate.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___CVM _  __DED__  __EIF___  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.




____Conrad V. Meyer____
          CHAIRPERSON




INDEX

CASE ID
AR20070001287
SUFFIX

RECON

DATE BOARDED
21 SEPTEMBER 2007
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MS. MITRANO
ISSUES         1.
100.0300.0000
2.

3.

4.

5.

6.