RECORD OF PROCEEDINGS


	IN THE CASE OF:	   


	BOARD DATE:	  19 July 2007
	DOCKET NUMBER:  AR20070002031 


	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 L. Engle

Analyst

The following members, a quorum, were present:


Mr. John T. Meixell

Chairperson

Mr. Robert J. Osborn II

Member

Mr. Michael J. Flynn

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 4 be changed so that he may reenlist in the Army. 

2.  The applicant states that his drill sergeant informed him that he would be allowed to reenlist in the United States Army after a 2-year wait.

3.  The applicant provides a copy of his Certificate of Release or Discharge from Active Duty (DD Form 214).

CONSIDERATION OF EVIDENCE:

1.   On 1 November 2002, the applicant enlisted in the Regular Army.  He did not complete his initial training and was not awarded a military occupational specialty.

2.  On 3 June 2003, the applicant’s brigade commander approved his separation under the provisions of Army Regulation 635-200, chapter 14, for commission of a serious offense (drug abuse).  The commander directed that the applicant receive a discharge under honorable conditions.

3.  On 10 June 2003, the applicant was accordingly discharged.  He was given a Separation Program Designator (SPD) Code of JKK and an RE Code of 4.  His character of service was under honorable conditions.  

4.  On 19 August 2006, the ADRB reviewed the applicant's request for an upgrade to his discharge.  The ADRB noted in its case report that the applicant had been recommended for separation under the provisions of Army Regulation 635-200, chapter 14 for misconduct (abuse of illegal drugs "cocaine").  He was advised of his rights, consulted with counsel and elected not to submit a statement on his own behalf.  The intermediate commander recommended separation from the service and to waive further rehabilitative efforts. The separation authority waived further rehabilitative efforts and directed that the applicant be discharged with a characterization of service of general, under honorable conditions.  The ADRB determined, after a careful review, that the discharge was improper in that the unit commander had used “Board Procedures” when notifying the applicant that he was initiating action to separate him for misconduct.  By using “Board Procedures” the authority for approval rested with the General Court-Martial Convening authority.  However, the evidence of record shows that someone other than the General Court-Martial Convening Authority approved the applicant’s discharge.  Therefore, the ADRB granted full relief in the form of an upgrade of the characterization of service to fully honorable and to change the reason for separation to Secretarial Authority.  ADRB did not change the RE Code.
  
5.  Army Regulation 601-210 prescribes eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment and includes a list of armed forces RE Codes including RA RE codes.  RE 4 applies to persons separated from their last period of service with a non-waivable disqualification.  That regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect.

6.  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 upon the guidance provided in Army Regulation 635-5-1 for soldiers separating under the provisions of AR 635-200, Chapter 14, for misconduct. Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), Army Regulation 635-5 (Separation Documents) establishes RE Code 4 as the proper RE code to assign to soldiers for this reason.  The SPD code of JFF is used for Secretarial Authority and requires an RE code determination on a case by case basis.

DISCUSSION AND CONCLUSIONS:

1.   The ADRB reviewed the applicant's discharge and made a deliberate determination that the discharge was approved by the improper authority.  

2.  The ADRB changed the reason for the applicant's discharge to Secretarial Authority and retained the RE Code 4.

3.  The RE Code 4, establishing his ineligibility for enlistment/reenlistment, was correctly entered on his separation document in accordance with governing regulations.  There is no evidence of error or injustice.

4.  There is no apparent basis for removal or waiver of the applicant’s disqualification that established the basis for the RE Code 4.  While the applicant’s desire to continue in the service to his country is commendable, there are no provisions authorizing the change of an RE Code for this purpose.

5.  In view of the foregoing, there is no basis for granting the applicant's request.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__MJF___  __RJO__  __JTM __  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.




___    John T. Meixell_______
          CHAIRPERSON




INDEX

CASE ID
AR20070002031
SUFFIX

RECON
 
DATE BOARDED
20070719 
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
 
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
110.0200
2.

3.

4.

5.

6.